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POLITICAL  SCIENCE. 
Vol.  II. 


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Political  Science 

O  R 

THE  STATE 

Theoretically  and  Practically  Considered 


THEODORE  D.  WOOLSEY 

LATELY   PRESIDENT  OF   YALE  COLLEGE 


Volume  II, 


SCRIRNER, 


NEW  YORK 

ARMSTRONG 
1878 


C  O  i\r  PA  N  Y 


Copyright  by 
SCRIBNER,  ARMSTRONG  &  CO., 
1877. 


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205-313  Knst  \-2tli  St.y 

NliW  VUKK. 


CONTENTS  OF  VOL.  11. 


\)(tvi  3. — Continued. 


CHAPTER  IV. 

ARISTOCRACY. 

Aristocracy  in  General — In  Greece — In  Rome — In  Carthage — In  Venice. . . .  1-59 

CHAPTER  V. 

Constitutions  of  Florence  60-101 

CHAPTER  VI. 

DEMOCRACY     AND  DEMOCRACIES. 

Democracy  in  the  City-State,  and  under  Representative  Systems — Ai  Rome — In 
the  United  States — Athenian  Democracy  I02-I4S 

CHAPTER  VII. 

COMPOSITE  STATES. 

Government  of  Conquered  States,  of  Provinces,  of  Colonies  146-165 

CHAPTER  VIII. 

CONFEDERATIONS. 

Nature  of  Confederations— Ancient  Confederations,  especially  the  .\chrean 
League  —  Germanic,  Swiss,  and  Dutch  Confederations— United  Stales  of 
America  166-258 


CHAPTER  IX. 
Departments  of  Government  


2S9-3-17 


vi 


CONTENTS    OF  VOL  II. 


CHAPTER  X. 

Institutions,  Local  and  Self-government  349-391 

CHAPTER  XL 

Relations  of  the  State  to  Public  Safety — Order — Health — Le\7ing  of  Money — 
Protection  of  Industry — Education — Relief  of  the  Destitute — Morals..  39  2-43S 

CHAPTER  XII. 

Relations  of  the  State  to  Religion  439-513 

CHAPTER  XIIL 

Influences  of  Physical  Causes  on  Polities — Influences  of  Polities  on  National 
Character — Art  and  Learning  514-541 

CHAPTER  XIV. 

Political  Parties  542-567 


CHAPTER  XV. 

Causes  of  Changes  in  Polities — Revolutions — National  Decline  and  Decay.  .568-606 


POLITICAL  SCIENCE. 


Part  3. 


-Continued. 


THE  STATE.— PRACTICAL  POLITICS. 


CHAPTER  IV. 
ARISTOCRACY. 


%  177- 

History  offers  us  few  examples  of  aristocratical  states 
Aristocracy  and  Compared  with  the  number  of  nations  ruled  by 
anstocracics.  kings,  and  of  those  few  the  greater  part  have 
been  short-lived  and  transitory.  Most  of  these  examples  are 
supplied  by  small  communities  which  ere  long  changed  their 
forms  of  government  and  became  democracies,  or  were 
merged  into  monarchies.  Some  have  taken  the  opposite 
course  ;  the  principle  of  monarchy  becoming  weak,  gave  way, 
as  we  have  seen,  to  a  powerful  nobility,  who  broke  it  up  into 
fragments,  until,  in  a  new  state  of  things,  they  could  not 
maintain  themselves  against  the  impulse  towards  a  stronger, 
more  national  government.  We  are  entitled,  by  deductions 
from  history,  to  lay  down  the  principle  that  aristocracy  is  or- 
dinarily capable  of  no  long  continuance,  when  it  is  the  sole 
governing,  or  by  far  the  strongest  power  in  the  state.  A 
body  of  nobles,  equals,  rivals,  jealous,  cannot  act  with  any 
long  concert,  and  are  not  adcciuate  to  the  demands  made 
upon  them  by  the  administration  of  a  large  country.  They 
VOL.  II. — I 


2 


POLITICAL  SCIENCE. 


generally  destroy  their  own  power  by  factions,  and  disgust 
the  lower  classes  by  haughtiness  ;  or  one  faction  unites  with 
these  against  another,  thus  modifying  and  perhaps  destroying 
the  constitution. 

A  different  subject  comes  before  us  when  aristocracy,  as  a 
power  or  order  in  a  state,  existing  by  the  side  of  other  orders, 
is  called  up  for  consideration.  Some  of  the  most  vigorous 
nations  have  had  an  infusion  of  this  element  in  their  constitu- 
tions, and  the  relations  of  a  nobility  to  royal  power  and  to 
democracy,  as  well  as  the  exact  place  it  has  occupied  in  de- 
veloping national  character  and  strength,  are  second  in  im- 
portance to  few  subjects  in  political  science.  After  briefly- 
treating  of  aristocratical  governments  we  will  consider  this, 
so  far  as  it  has  not  been  considered  already  in  connection 
with  other  forms  of  government. 

178. 

In  Greece,  as  we  have  seen,  a  basilcns,  or  king  of  the  earlier 
Aristocracy  or  oii-  typc,  must  havc  cxistcd  in  every  independent 
garchy  in  Greece,  commuuity  of  the  eadicst  historic  and  prehis- 
toric ages,  with  a  body  of  privileged  men  by  his  side,  the 
chief  men  of  the  little  state.  In  almost  every  city-state  a  time 
came  when  the  kingly  power  ceased,  and  the  chief  power 
passed  into  the  hands  of  a  moderate  number  of  families  of  an- 
cient descent  and  of  considerable  possessions.  The  genealo- 
gies of  the  well-born  sometimes  went  back  into  the  mythic 
period.  Thus  a  man  of  Gythium  in  Laconia,  to  whom  honors 
are  decreed  by  the  people  of  the  place,  is  described  on  an 
inscription  as  being  a  descendant  in  the  thirty-ninth  genera- 
tion from  the  Dioscuri,  and  in  the  forty-first  from  Hercules. 
The  distinction  made  by  Aristotle  (Pol.,  iii.,  5,  4).  between 
aristocracy — so  called  because  the  government  is  in  the  hands 
of  the  best,  or  because  they  govern  for  the  greatest  good  of 
the  state  and  of  their  associates — and  oligarchy,  which  aims 
at  the  interests  of  the  wealthy,  may  be  neglected  by  us  as  we 
consider  the  states  which  are  governed  by  a  privileged  few. 
When  these  few  arc  of  ancient  extraction,  of  considerable 


ARISTOCRACY. 


3 


wealth,  and  in  the  enjoyment  of  high  consideration  among 
the  people,  the  government  will  often  be  mild  and  patriotic. 
But  where  another  class  arises  of  newly  enriched  families  who 
demand  privileges  which  are  denied  them  by  the  old  families, 
or  where  a  few,  a  faction,  and  that  a  suspicious  faction,  have 
possession  of  power  and  wield  it  selfishly,  such  governments 
we  describe  as  oligarchies.  But  there  is  no  marked  line  sep- 
arating the  two  types. 

The  names  given  by  the  Greeks  to  the  members  of  this 
upper  class,  varied  greatly  in  different  communities.  Some- 
times they  are  called  eiipatridce ,  or  by  other  names  denoting 
birth  (as  evy6vet<;,  well-born),  or  are  described  by  their  prop- 
erty (as  the  rich,  t/ie  ivcll  to  do,  eviropoC),  or  the  land-owners, 
if  so  we  may  translate  the  word  ^d^opoi,  those  who  had  a 
portion  of  the  land,  a  name  for  this  class  in  Samos,  and  at 
Syracuse  as  late  as  the  Peloponnesian  war.  Their  names 
again  might  be  derived  from  their  position  or  their  culture. 
Of  this  kind  were  the  titles,  the  best,  dpicrrot,  and  the  koXoI 
KuyaOoi,  which  were  used  also  at  Athens  in  the  times  of  the 
democracy  to  denote  the  upper,  more  respectable  part  of 
society.  Other  names  came  from  the  kind  of  military  service 
which  they  performed.  Thus  they  were  known  in  some 
places  as  horsemen  (tVTret?),  since  the  keeping  of  a  horse  in 
Greece  implied  a  higher  than  the  ordinary  amount  of  wealth, 
or  possibly  as  hoplites,*  since  the  heavy-armed  soldier  needed 
servants  in  war  to  hold  his  shield,  and  perform  other  offices. 
All  these  ways  of  denoting  the  governing  class  run  back  to 
the  possession  of  wealth,  especially  of  land,  and  to  birth, 
which  in  time  was  held  in  less  and  less  honor.  Wealth  then 
remained  with  tiie  privileges  which  it  brought  with  it,  as  the 
basis  of  oligarchy,  and  when  commerce  grew  up  in  favored 
cities  and  placed  wealth  in  new  families,  these,  in  course  of 
time,  began  to  feci  that  they  were  equal  to  the  old  eupatrida;. 
It  was  natural  and  common  for  the  upper  class  to  avoid  mar- 
riages with  the  new  families,  but  this  usage  being  broken 


*  Coinp.  Aristot.  Pol.,  vi.,  or  iv.,  lo,  §  lo,  and  vi.,  or  iv.,  3,  g  4. 


4 


POLITICAL  SCIENCE. 


through,  at  length  the  hues  between  classes  began  to  dis- 
appear. At  Corinth,  the  Bacchiadae,  a  house  claiming  de- 
scent from  Hercules,  would  not  marry  even  with  the  other 
less  distinguished  noble  families,  and  held  the  power  of  the 
state  in  their  hands.  One  of  the  daughters  of  this  sept,  how 
ever,  having  become  the  wife  of  a  man  pertaining  to  another 
high-born  family,  gave  birth  to  Cypselus,  who,  vexed  by  his 
exclusion  from  offices  of  state,  and  procuring  a  band  of  parti- 
sans among  the  people,  overthrew  the  power  of  his  mother's 
family,  and  secured  for  himself  the  sway  over  Corinth. 
(Herodot. ,  v.,  92,  Nic.  Damasc,  vii.,  frag.,  50.) 

Aristotle  (Pol.,  vi.,  or  iv.  6,  >^  5)  finds  only  two  elementary 
principles  in  aristocracy — wealth  and  virtue  (apexj;,  manhood 
comprehending  talent).  Good  birth  is  only  wealth  and  virtue 
of  old  standing.  Families  are  thus  founded  which  perpetuated 
themselves  by  the  wealth  laid  up  by  ancestors.  The  early 
times  of  society  are  peculiarly  favorable  for  the  advance  of 
men  whose  qualities  far  surpass  those  of  their  fellows  ;  by 
conquest  or  services  to  the  community,  they  gain  wealth  in 
land  which  increases  in  value  with  the  increase  of  population. 
The  family  wealth  gives  leisure  and  opportunit)^  to  excel  in 
bodily  exercise,  arms  and  personal  accomplishments  fit  for  a 
freeman.  Thus  the  position  in  the  community  once  acquired 
is  kept  up.  Poetic  myths,  deducing  their  race  from  a  divine 
ancestor,  added  to  their  exaltation. 

In  every  Greek  state  there  were  phylce,  or  tribes  and  sub- 
divisions of  tribes.  These  made  up  the  community,  and  ne 
one  could  have  political  rights  who  was  not  a  member  of  3 
tribe,  unless  admitted  by  adoption  or  general  consent. 

The  ordinary  constitution  of  the  Greek  oligarchies  pro- 
vided for  an  assembly  and  a  council  like  that  of  the  democra- 
cies, but  the  assembly  was  composed  of  such  as  had  a  cer- 
tain amount  of  property,  and  the  council  often  consisted  of 
members  who  had  reached  a  certain  advanced  age,  or  of  those 
who  held  their  offices  for  life.  Frequent,  especially  annual 
elections,  were  marks  of  a  democracy,  and  the  use  of  the  lot 
of  extreme  democracy.    In  some  places  a  twofold  council  is 


ARISTOCRACY. 


5 


said  to  have  existed  ;  one  smaller  in  number  than  the  other. 
But  it  is  difficult  to  decide  whether  the  larger  council  may 
not  have  been  the  same  as  the  assembly  of  all  the  citizens 
having  right  of  suffrage.  In  Elis  the  gcrusia  consisted  of 
ninety  members  ;  in  Cnidus,  of  sixty  exempt  from  all  con- 
trol ;  in  Epidaurus,  the  council  of  the  artyiii,  or  artynce,  was 
a  detachment  or  committee  selected  from  a  hundred  and 
eighty  men,  who  would  thus  constitute  the  larger  council  ;  * 
in  Marseilles,  a  committee  of  fifteen  from  a  body  of  si.K  hun- 
dred,f  a  number,  which  in  so  considerable  a  place  would 
scarcely  contain  the  whole  body  of  wealthy  citizens.  In  other 
places  a  body  of  a  thousand  is  spoken  of,  which,  if  they  did 
not  include  the  entire  number  of  citizens  with  full  privilege, 
would  be  a  great  council  with  at  least  one  small  council  over 
them.  Besides  these  bodies  which  prepared  business  for  one 
another — the  smaller  for  the  larger — general  assemblies  of  the 
people  are  mentioned,  which  may  have  had  very  limited 
powers,  perhaps  no  right  to  originate  measures.  In  some 
oligarchies,  again,  a  class  of  citizens,  as  the  hoplites  of  the 
Malians  (Aristot.  cited  above),  form  a  senate  without  regard 
to  number,  but  in  so  small  a  state  these  were  without  doubt  few. 
In  others  a  senate  of  permanent,  and  a  council  of  annual 
members  are  found  side  by  side.  Such  may  have  been  the 
eighty  and  the  council  {fiovki)),  at  Argos,  who  with  magistrates 

♦  Plut.,  Q.  Grnec,  i.,  and  for  Cnidus,  ibid.,  4. 

\  Of  ihe  constitution  of  this  old  Phocean  colony,  Strabo  thus 
speaks  fiv.,  §  5,  p.  179):  "The  Afassaliots  have  an  aristocratic 
administration,  and  are  under  the  best  of  laws.  They  ai)point  a 
sytudrutin  [or  council]  of  six  hundred,  who  hold  this  honor  for  hfe, 
and  are  called  timuclii  [honor  or  oftice  holders].  Fifteen  are  jiresi- 
dents  of  the  synedriuni,  to  whom  the  management  of  current  atfairs 
is  entr  ubteti.  Again,  three  persons  of  the  greatest  influence  preside 
over  the  fifteen,  and  one  presides  over  the  tliree.  No  one  can 
become  a  timuchus  who  is  witiiout  ciiiklren,  and  is  not  born  of  those 
who  have  been  citi/;ens  for  three  generations."  This  does  not  imply 
that  all  who  are  thus  descended  can  be  timuchi,  unless  citizens  is 
taken  in  the  sense  of  citizens  with  full  rights,  and  implies  admissions 
of  new  comers  into  the  community.  Caisar  mentions  the  fifteen. 
(l)e  Bell.  Civ.,  i.,  §  35-) 


6 


POLITICAL  SCIENXE. 


called  ArtyncB  (arrangers  or  managers)  were  to  take  the  oaths 
in  the  treaty  of  420  B.C.  At  Athens,  while  it  was  an  oligar- 
chy, the  council  sitting  on  the  Areopagus  and  composed  of 
members  of  well-born  families  {eiipatridce),  was  the  council 
for  state  affairs,  as  well  as  a  court  of  justice;  the  nine  arch- 
ons,  afterwards  presidents  of  courts  of  justice,  were  the  chiefs 
of  administration  ;  and  a  newer  body  of  naticrm-i,  or  presi- 
dents of  forty- eight  districts,  formed  a  council  for  military, 
naval,  and  financial  affairs.  All  this  probably  belonged  to  the 
aristocratic  constitution. 

The  executive  officers  and  presiding  magistrates  of  the 
Greek  states,  in  the  aristocratic  ages,  seem  to  have  formed 
boards  or  colleges,  selected  from  the  magistrates  in  general, 
and  having  their  special  departments,  but  uniting  in  counsel. 
A  body,  for  instance,  called  a  Syna7-chia,  or  union  of  magis- 
trates (a  board  met  with  in  other  cities),  is  mentioned  as 
existing  at  IMegara  and  as  bringing  their  propositions  before 
the  iTsyninctce ,  the  council  and  assembly  of  the  people.  The 
many  names  which  are  attached  to  the  magistrates  show  the 
free  development  of  political  ideas  in  the  little  states  of  Greece. 
Prytanis  was  one  of  the  oldest  and  most  widely  diffused 
through  various  races.  The  length  of  office  in  the  prjehistoric 
times  may  have  been  for  life  or  for  a  term  of  years,  ten,  for 
instance,  but  the  general  tendency  was  towards  a  continually 
shorter  term. 

The  magistrates  or  public  officers  in  the  oligarchies  were 
taken  from  certain  families  which  kept  themselves  distinct 
from  the  people  by  not  intermarrying  with  them,  or  from  a 
single  family,  as  in  the  case  of  the  Bacchiadae  at  Corinth  al- 
ready mentioned,  or  from  those  who  had  a  certain  amount  of 
property.  In  some  cases  a  son  succeeded  his  father  in  an 
office;  a  peculiarity  which  Aristotle  thought  to  be  important 
enough  to  define  by  it  one  of  his  kinds  of  oligarchy.  (Pol., 
vi.  or  iv.,  5,  §  I.)  Age,  also,  among  those  who  were  eligible, 
was  naturally  an  aristocratic  requisite.  Thus,  in  Chalcis  of 
Kuboea,  the  age  of  fifty  was  the  lowest  limit.  The  magis- 
trates were  responsible  almost  without  exception  ;  they, 


ARISTOCRACY. 


7 


probably,  as  a  general  rule,  served  without  salary,  and  hence 
Aristotle  advises  (Pol.,  vii.  or  vi.,  4,  >^  6),  that  the  principal 
magistrates  in  an  oligarchy  should  have  expensive  public  ser- 
vices {liturgice)  imposed  on  them,  so  that  the  people  should 
willingly  be  excluded  from  these  offices,  and  should  not  be 
jealous  of  the  holders  of  them,  inasmuch  as  they  had  paid 
high  for  their  privilege.  It  would  be  well,  also,  he  thinks, 
that  when  they  enter  on  their  magistracies  they  should  make 
sacrificial  feasts  and  build  some  public  monument,  for  thus 
the  people,  partaking  of  the  festivities  and  seeing  the  city 
adorned  with  statues  and  buildings,  would  desire  the  perma- 
nence of  the  constitution.  But  this,  he  adds,  "  the  oligarchs 
of  the  present  day  do  not  do,  but  rather  the  contrary.  They 
seek  gains  no  less  than  honors,  for  which  reason  it  is  just  to 
call  the  oligarchies  democracies  in  the  hands  of  a  few." 

The  administration  of  justice  in  the  aristocratic  city-states 
of  Greece  differed  from  those  of  the  democracies  chiefly  in 
these  particulars  :  that  civil  cases  were  decided  by  magistrates 
without  a  court  of  judges  or  dicasts,  and  that  criminal  justice, 
as  far  as  crimes  were  concerned,  was  in  the  hands  of  colleges 
of  public  officers.  Murder  and  other  crimes  having  a  relig- 
ious side,  were  brought  before  special  courts.  Aristotle  re- 
marks on  the  impolicy  of  so  organizing  the  courts  of  justice 
that  those  who  are  not  full  citizens  could  serve  in  them,  "  for 
by  demagogy  in  reference  to  trials  they  [the  members  of  the 
aristocracy,  when  accused  of  crimes]  change  the  constitution, 
as  happened  in  Heraclca  of  Pontus."    (viii.  or  v.,  5,  <^  5.) 

The  Greeks  of  the  little  oligarchies  strove  with  great  good 
sense  to  preserve  the  existing  state  of  things  by  institutions, 
especially  by  an  education  of  the  young,  suited  for  this  end. 
But  it  was  impossible,  whenever  intelligence  and  wealth  came 
ill  among  the  people,  to  preserve  these  governments  from 
feeling  the  natural  causes  of  decay,  such  as  the  feeling  of  in- 
feriority in  those  who  were  excluded,  of  bitter  hatred  towards 
the  haughty  cupatrids,  of  decay  in  the  number  and  physical 
constitution  of  families  marrying  within  themselves.  A  time 
of  decay  came  to  all  of  them.    Aristotle  mentions  the  dangers 


8 


POLITICAL  SCIENCE. 


and  the  means  of  averting  them.  (Pol.,  viii.  or  v.,  5.)  The 
causes  of  revolutions  in  oligarchies — so  far  as  they  are  pecu 
liar — may  be  reduced,  he  thinks,  to  two,  the  first  of  which  is 
oppression  of  the  inferior  classes,  who  will  take  any  leader 
that  offers.  It  more  frequently  happens,  however,  that  the 
authors  of  the  movements  belong  to  the  members  of  the 
oligarchy  itself.  "  Such  was  Lygdamis  in  Naxus,  who  after- 
wards became  a  tyrant  over  the  people  of  the  island. "  There 
are  differences  in  the  revolutions  that  arise  from  some  discon- 
tent within  the  oligarchical  body.  "Sometimes  they  arise 
from  the  fact  that  numbers  in  the  wealthy  class  are  not  ad- 
mitted to  a  share  in  the  offices,  which  are  kept  in  the  hands 
of  a  few.  Such  was  the  case  in  Marseilles,  in  Istrus  (or  Istrop- 
olis),  in  Heraclea  (of  Pontus  ?),  where  those  who  did  not  share 
in  office  agitated  until  they  got  a  share  for  fathers  and  older 
brothers,  first,  and  then  for  younger.  It  was,  indeed,  against 
the  law  in  some  states  for  children  to  hold  office  at  the  same 
time  with  their  fathers,  and  for  brothers  at  the  same  time 
with  brothers. "  *  At  Marseilles  the  oligarchy  became  [through 
the  change]  more  republican  [more  like  the  politcia  or  com- 
monwealth] ;  in  Istrus  it  ended  in  a  democracy  ;  in  Heraclea, 
from  consisting  of  a  few,  it  came  into  the  hands  of  six  hun- 
dred. In  Cnidus  again,  where  the  notables  quarrelled  among 
themselves,  because,  as  in  the  case  just  mentioned,  more 
than  one  in  a  family  could  not  hold  office  at  once,  the  people, 
seizing  the  opportunity  while  they  were  in  their  strife,  with 
the  aid  of  a  leader  from  among  the  notables,  attacked  and 
overcame  them.  Again  in  Erythras,  during  the  oligarchy 
of  the  Basilidae  in  the  old  times,  although  those  who  were 
holding  the  government  administered  affairs  well,  the  people, 
indignant  at  being  governed  by  a  few,  changed  the  form  of 
polity.  Oligarchies,  again,  are  shaken  through  the  rivalry 
of  demaeocues  arising  within  the  number  of  the  holders  of 
power  themselves.  There  are  two  kinds  of  demagogy  ;  one, 
the  sphere  of  which  is  within  the  oligarchy,  for  a  demagogue 

*  Conip.  ihe  divicto  in  I'lorcncc,  infra,  §  1S6. 


ARISTOCRACY. 


9 


can  arise  in  a  ruling  faction,  of  however  few  it  may  consist, 
as  among  the  thirty  at  Athens  Charicles  gained  his  ascen- 
dency by  being  a  demagogue  among  the  thirty  [B.  C.  404J, 
and  Phrynichus  hkewise  among  the  four  hundred,  [b.  c. 
411.]  Again,  those  are  oligarchic  demagogues  who  flatter 
the  people,  as  at  Larissa  the  magistrates,  called  politophylaces, 
because  the  people  chose  them,  played  the  demagogue 
towards  the  people.  The  same  is  true  of  oligarchies  where 
the  class  from  which  the  public  officers  are  selected  do  not 
choose  the  officers,  but  while  large  properties  or  select  clubs 
furnish  the  officers,  the  heavy  armed  soldiers  or  the  demus 
chose  them,  as  in  Abydus.  So  where  the  courts  of  justice 
are  not  filled  by  the  more  privileged  class  of  citizens,  the  pol- 
ity is  changed  by  demagogical  arts  used  in  reference  to  trials. 
There  are  changes  again  when  the  power  is  restricted  to  a 
small  number,  in  which  case  those  who  claim  equality  are 
forced  to  call  the  people  to  their  aid.  Changes  occur,  also, 
where  members  of  the  oligarchy  by  riotous  living  waste  their 
own  property  ;  for  such  persons  are  ready  for  innovations  in 
the  polity,  and  cither  themselves  try  to  gain  tyrannical  power 
or  put  others  up  to  the  gaining  of  it,  as  Ilipparinus  put  Uio- 
nysius  [the  elder]  forward.  (Pol.,  viii.  or  v.,  5,  1-6). 
Sometimes  they  \i.  c,  these  ruined  members  of  the  oligarchy] 
try  to  make  some  political  change,  sometimes  to  steal  the 
public  treasure,  from  which  dissensions  arise  among  the 
thieves  ;  or  else  those  who  rise  up  in  arms  against  the  thieves 
effect  a  revolution.  A  harmonious  oligarchy,  however,  is 
not  easily  destroyed  by  itself,  as  the  polity  of  the  Pharsalians 
proves,  for  they,  though  few,  are  masters  of  many  Ijccausc 
they  treat  one  another  well.  Oligarchies  are  dcstro}-cd 
again  when  a  second  rises  up  within  a  first.  This  takes  place 
when  all  the  politically  qualified  being  but  a  few,  all  of  those 
few  arc  not  admitted  to  a  participation  in  the  principal 
offices.  I'Llis  affords  an  instance  of  this,  where  the  holders 
of  power  being,  at  the  most,  a  small  body,  the  numbers  of 
new  senators  was  necessarily  very  inconsiderable,  because 
the  senators,  being  in  all  ninety,  held  office  for  life  ;  more- 


10 


POLITICAL  SCIENCE. 


over,  the  choice  was  confined  to  a  few  powerful  families. 

m7,8.) 

Oligarchies,  Aristotle  adds,  are  exposed  to  revolutions 
both  in  war  and  in  peace.  "  In  war,  owing  to  distrust  of  the 
people,  they  are  forced  to  employ  [hired]  soldiers  whose 
commander  often  becomes  a  tyrant,  as  Timophancs  [brother 
of  Timoleon]  did  at  Corinth.  Or  if  there  are  a  number  of 
commanders  they  acquire  dynastic  power  for  themselves. 
But  sometimes  in  apprehension  of  this  they  [the  oligarchy] 
give  the  people  a  share  in  the  gov^ernment,  because  they  are 
forced  to  make  use  of  their  assistance.  Sometimes,  again, 
in  peace,  on  account  of  mutual  distrust,  they  put  the  guard 
of  the  city  into  the  hands  of  soldiers  and  a  commander  who 
belongs  to  neither  party,  who  sometimes  becomes  master  of 
both,  as  happened  at  Larissa  under  the  government  of  the 
Aleuadae,  namely,  of  Simus  and  his  party,*  and  at  Abydus  in 
the  times  of  the  clubs,  one  of  which  was  that  of  Iphiades. "  (§  9.) 

Factions  and  strife  arise  also  when  members  of  the  govern- 
ing class,  in  an  oligarchy,  work  against  one  another  and  form 
counter  factions  on  the  score  of  marriages  or  suits  at  law. 
Such  were  the  factions  already  spoken  of  relating  to  mar- 
riage ;  and  Diagoras  of  Eretria,  owing  to  a  wrong  -in  this  re- 
spect, overthrew  the  oligarchy  of  the  horsemen  in  that  city. 
From  the  verdict  of  a  court  the  civil  strife  in  Heraclea  arose, 
and  an  accusation  of  adultery  occasioned  one  at  Thebes. 
The  punishment  was  procured  justly  but  in  a  factious  way 
against  Eurytion  in  Heraclea,  and  against  Archias  in  Thebes. 
Their  adversaries  had  such  violent  feelings  toward  them  as  to 
cause  them  to  be  fastened  in  the  pillory  in  the  agora.  \  {■^  10.) 

Many  oligarchies  again  have  been  overthrown  by  members 
of  the  ruling  class  itself  who  had  been  disaffected  on  account 

*  The  readins;  twv  Trepi  St/xoi',  instead  of  rCov  rrepl  ^d/xov,  from  which 
no  sense  can  l)e  eUcitcd,  is  adopted  in  Didot's  Aristotle,  after 
Sclinoider,  wlio  makes  it  very  ))robahle  m  the  addenda  to  tlie  second 
volinne  of  liis  edition  of  tlie  I'olitics. 

t  A  punislinient  indicted  on  slaves  more  especially.  Comp.  K.  V. 
Hermann,  Gr.  Antiq.,  iii.,  §  72,  note  33. 


ARISTOCRACY. 


II 


of  the  despotism  of  the  government.  This  happened  to  the 
oHgarchies  in  Cnidus  and  in  Chios.  Changes  of  pohty  are 
caused  also  both  in  an  oUgarchy  and  in  a  commonwealth 
(politeia)  by  chance  or  change  of  circumstances,  in  those 
states  where  the  offices  of  senator,  judge  and  magistrate  de- 
pend on  a  fixed  amount  of  property  ;  for  in  many  places  the 
original  amount  or  property  qualification  had  been  fixed  upon 
with  reference  to  the  circumstances  of  the  time — so  that  in 
an  oligarchy  the  few,  and  in  a  commonwealth  the  middle 
class,  could  have  a  share  in  the  government.  But  at  length, 
owing  to  the  prosperity  caused  by  peace  or  by  some  other 
source  of  good  fortune,  the  properties  became  worth  many 
times  their  old  price,  whether  by  some  sudden  enhancement 
or  in  a  gradual  unperceived  way,  and  thus  all  the  citizens  could 
partake  of  all  offices  in  the  state.  Revolutions  and  internal 
strifes  arise  in  oligarchies  from  such  causes.  It  maybe  added 
in  the  general  way  that  both  democracies  and  oligarchies 
sometimes  pass  over  not  into  the  opposite  politics,  but  into 
those  within  the  same  species,  as  from  legal  democracies  and 
oligarchies  into  arbitrary  ones  and  from  these  into  those. 
(§  II,  12.) 

Aristotle  proceeds  to  consider  revolutions  in  aristoci-acics 
(viii.  or  v.,  6)  ;  on  which  we  need  not  dwell,  since  substantially 
the  same  influences,  only  with  a  less  destructive  energy,  are 
at  work  here  as  in  oligarchies.  Revolutions  arise  here  from 
the  smallness  of  the  minority  who  have  access  to  public  af- 
fairs, so  as  to  exclude  a  part  of  the  citizens,  who  are  in  most 
respects  their  equals  ;  from  the  outraged  feelings  of  eminent 
men  who  are  put  below  others,  their  inferiors  in  everything 
but  aristocratic  rank  ;  from  the  extremes  of  opulence  and 
misery  to  be  found  in  states  of  this  kind  ;  from  a  single  all- 
grasping  man  like  Pausanias  of  Sparta  ;  from  allowing  the 
principal  persons  in  the  state  to  accumulate  too  large  pro- 
perties ;  from  unperceived  and  insensible  causes. 

The  Greek  oligarchies  and  aristocracies  were  in  a  situation, 
owing  to  the  small  size  of  the  city-states,  to  feel  influences 
from  neighboring  states  of  an  opposite  constitution  with 


12 


POLITICAL  SCIENCE. 


great  sensitiveness  ;  and  as  parties,  within  the  state  leaning 
towards  democracy  or  ohgarchy,  were  brought  into  close 
contact  within  the  same  city-walls  and  subject  to  suspicion, 
and  irritations  caused  by  single  persons,  it  is  not  strange  that 
parties  were  bitter  and  cruel.  Such  bitterness  and  cruelty 
is  well  illustrated  by  the  seditions  in  Corcyra  during  the 
Peloponnesian  war,  ending  in  the  frightful  massacre  (427  B. 
C.)  in  which  the  oligarchy  were  nearly  all  cut  off ;  and  by  the 
temporary  sway  and  reign  of  terror  at  Athens  during  the 
ascendency  of  the  thirty  towards  the  dose  of  the  same  con- 
test. Still  more  strikingly  is  the  bitterness  of  parties  shown 
by  what  Aristotle  records  of  oaths  taken  in  some  oligarchies 
in  his  time  to  this  effect :  "  I  will  have  a  hostile  mind  towards 
the  demus  and  will  devise  whatever  evil  I  can  against  it." 
(viii.,  or  v.  7,  <^  19).  Such  horrible  expressions  of  hatred 
are  not  strange  in  a  small  community,  where  suspicions  of 
internal  violence  and  of  intrigues  with  other  states  are  con- 
tinually aroused,  nor  are  they  peculiar  to  the  Greeks.  The 
Italian  republics  of  the  middle  ages  furnish  parallels  in  more 
respects  than  one  to  the  Greek  city-states,  in  which  parties 
were  about  equally  strong,  and  where  an  active  democracy 
was  contending   for  a  share  in  the  government  without 

StiCCCSS. 


§  179- 

After  the  expulsion  of  the  Tarquins  at  Rome,  an  aristo- 
Rome  in  its  form  cratical  rather  than  an  oligarchical  form  of 
of  ansiocracy.  polity  was  givcn  to  the  state  by  those  who  were 
in  the  possession  of  wealth  and  power.  The  great  change 
was  the  substitution  of  two  annually  elected  magistrates 
instead  of  the  ancient  king  elected  for  life.  The  new  chief 
magistrates  had  very  great  power,  they  were  all  but  kings 
for  a  year  ;  but  the  singular  principle  of  collcgiality,  almost 
peculiar  to  Rome,  by  which  two  or  more  persons  had  at  the 
same  time  the  same  power,  left  it  free  for  them  to  divide 
their  functions  or  to  oppose  and  interfere  with  one  anotiier. 
So  far  it  was  a  limitation,  but  wc  cannot  say  whether  these 


ARISTOCRACY. 


13 


praetors  or  consuls  were  by  original  creation  two  in  number 
in  order  that  they  might  check  one  another,  which  is  imput- 
ing perhaps  too  much  sagacity  to  those  who  planned  the 
office,  or  whether  there  were  two  rather  than  one,  in  order 
that  one  might  be  in  service  abroad  if  necessary,  while  the 
other  was  a  magistrate  at  home,  like  the  king  and  the  prefect 
of  the  city  ;  or  whether  some  ancient  peculiarity  of  the  city- 
state  gave  form  to  the  institution. 

The  free  inhabitants  at  the  expulsion  of  the  kings,  consti- 
tuted, besides  protected  strangers,  two  classes,  one  with 
rights  of  suffrage  and  of  holding  office  and  from  which  alone 
the  active  or  debating  members  of  the  senate  were  taken, 
and  another  of  citizens  without  jus  suffragii,  or,  at  least, 
without  jus  honorum,  i.  e.,  the  plebeian  order.  These  latter 
had  been  united  with  the  first  in  what  is  called  the  Servian 
constitution,  which,  in  its  system  of  centuries  and  classes,  had 
reference  at  first  simply  to  service  in  war.  A  rule  excluding 
persons  over  sixty  years  of  age  from  the  centuries  would  have 
been  absurd,  as  Mommsen  observes,  had  it  affected  political 
rights.*  Many  of  the  first  citizens  of  the  state  and  the 
members  of  the  senate  must  have  outlived  that  number  of 
years.  But  on  lists  of  men  liable  to  be  called  into  the  field, 
and  to  appear  according  to  the  estimate  of  their  estates,  in 
different  armor  and  different  kinds  of  military  service,  such 
men  would  naturally  have  no  place.  E\'cn  such  citizens  as 
had  reached  the  age  of  forty-six  were  excused  from  service  in 
the  field,  and  only  guarded  the  walls.  But  this  constitution, 
although  it  aimed  simply  at  systematizing  military  affairs, 
brought  important  political  consequences  with  it.  It  brought 
the  wealthy  plebeian  and  the  patrician  into  the  field  side  by 
side,  or  put  some  plebeians,  it  might  be,  into  the  rank  of 
heavy  armed  troops,  while  some  patricians  were  in  a  class 
below  him.  The  centuries  sanctioned  the  testaments  of  sol- 
diers made  before  battle,  and  the  king  asked  sanction  of  tlicm 
in  aggressive  wars.    (Momms.,  i.,  138-139,  transl.)    And  as 


Mommsen,  Mist.,  i.,  138,  Amcr.  cd.  of  transl. 


14 


POLITICAL  SCIENCE. 


under  the  kings  plebeians  had  been  received  on  the  proposal 
of  the  king,  by  consent  of  the  patrician  citrice,  into  their  num- 
ber, it  might  naturally  be  an  object  of  hope  that  the  same 
thing  should  take  place  after  the  Servian  constitution,  and 
after  the  expulsion.* 

The  consuls  had  nearly  the  power  of  kings,  and  stood  as 
heads  of  the  aristocracy,  which  naturally  would  become  and 
seems  to  have  become  more  jealous  of  its  privileges,  and  to 
have  acted  more  on  the  defensive  against  the  order  below 
them,  as  their  common  subjection  to  the  king  ceased,  as  well 
as  more  conscious  of  power  to  resist  an  annually  elected 
magistrate,  than  one  appointed  for  life.  The  great  points  to 
be  reached  by  the  plebeians  were  restriction  of  the  power  of 
the  consuls,  and  abolition  of  the  exclusive  right  of  patricians 
to  the  offices  and  control  of  the  state.  There  was,  of  course, 
stout  resistance  in  both  of  these  particulars,  and  it  fills  the 
history  of  Rome  for  several  centuries  until  they  gained  their 
points.  On  the  whole,  the  internal  contest  was  waged  with 
more  patience  and  less  violence  on  the  part  of  the  popular 
leaders  than  is  usual  in  similar  struggles  between  orders. 
The  absence  of  sedition  and  of  extreme  measures,  where  self- 
defence  did  not  make  them  necessary,  does  high  honor  to  the 
loyal  spirit  of  the  Romans  ;  and  the  conflict  must,  in  the 
course  of  the  ages  during  which  it  was  going  on,  have  called 
forth  an  amount  of  political  thought  which  was  the  best  edu- 
cation for  the  citizen.  At  length,  all  patrician  privileges 
■were  abrogated,  the  state  from  two  became  one,  plebeians 
filled  the  highest  offices  of  state,  were  at  the  head  of  armies, 
founded  families  that  became  illustrious.  But  now  another 
division  arose,  between  X.\\e  optiJitatcs  and  the  people  or  plcbs, 
the  former  of  which  was  composed  of  families  of  great  wealth, 
most  of  whom  had  had  consular  members,  or,  at  least,  such  as 

*  It  has  not  been  an  object  in  this  sketch  to  give  an  account  of  the 
constitution  of  Rome,  but  only  of  the  changes  by  which  it  passed 
out  of  its  aristocratical  form.  Hence,  nothing  has  been  said  of  the 
dictatorship  and  little  of  other  offices  as  such.  The  dictatorship  had 
no  marked  inMuence  on  the  development  of  the  Roman  constitution. 


ARISTOCRACY. 


were  qualified  by  their  offices  for  admission  into  the  senate ; 
and  who  sought  to  secure  offices  at  home,  proconsulships 
abroad,  and  other  ways  of  getting  honor  and  fortune.  This 
party  was  represented  by  the  senate  ;  it  contained  men  of 
plebeian  families  like  the  Licinii  to  which  Crassus  belonged, 
£is  well  as  of  patrician  like  the  Fabii  and  yEmilii,  who  by  their 
position,  connections,  and  wealth  were  able,  for  the  most 
part,  to  engross  the  honors  and  emoluments  of  the  state. 
The  senate  thus  composed  became  an  oligarchical  council, 
seeking  principally  the  advantages  of  its  members,  and  of 
their  friends.  On  the  other  hand  there  grew  up  a  new  popu- 
lar party,  for  which  the  tribunes  of  the  people  formed  a  natu- 
ral head,  and  on  many  occasions  resisted  the  measures  of  the 
administrative  organ  with  demagogical  arts  and  violence. 
The  division  thus  caused,  was  intensified  when  prominent 
men  like  Marius  and  Sulla,  Caesar  and  Pompcy,  in  their  own 
personal  interest,  and  engaged  in  strife  with  one  another, 
enlisted  senate  and  people  on  the  two  sides.  The  later  phases 
of  these  factions  were  low  and  disgraceful,  and  it  seemed  to 
be  a  necessary  downfall  when  a  member  of  a  patrician  family, 
which  had  never  been  very  eminent  in  the  state,  sided  with 
the  people  and  overthrew  the  senate.  The  series  of  revolu- 
tions now  closed  consisted  of  monarchy  of  the  old  heroic  sort, 
a  rigid  aristocracy,  a  commonwealth  or  republic  containing 
an  oligarchy,  a  tyranny  in  the  form  of  imperial  power,  ac- 
cepted by  senate  and  people,  and  absorbing  into  itself  the 
authority  of  the  highest  magistrates.  These  changes  were  in 
kind  similar  to  those  which  many  little  Greek  states  had 
passed  through  before,  but  now  they  appear  on  a  vast  scale, 
in  a  state  which  had  conquered  the  world. 

In  what  follows  we  propose  to  confine  ourselves  simply  to 
three  points  :  to  the  senate  as  the  organ  of  a  class  ;  to  changes 
in  political  rights  by  which  the  plebs  became  one  with  the 
aristocracy  ;  and  to  those  changes  which  brought  limitations 
into  the  power  of  the  consuls,  both  by  positive  restrictions 
and  b)'  dividing  up  the  functions  of  government  among  a 
number  of  magistrates. 


i6 


POLITICAL  SCIENCE. 


I.  The  Senate  of  Rome,  consisting,  according  to  tradition, 
of  the  heads  of  the  three  hundred  original  gentes 
belonging  in  equal  numbers  to  the  three  original 
tribes,  was  a  body  of  life-long  counsellors  of  the  kings,  not 
materially  differing  from  those  in  the  early  Greek  monarchies 
of  which  we  have  already  spoken.  At  the  beginning  of  the 
republic,  according  to  a  tradition  accepted  by  all  the  ancient 
writers  who  have  spoken  on  this  subject,  an  addition  of  as 
many  as  one  hundred  and  four  members  was  made  to  the 
senate  on  account  of  the  reduction  of  its  numbers  at  the 
revolution,  and  these  were  taken  from  the  plebeian  order. 
The  new  members  were  called  conscripti  j  and  patrcs  conscripti 
came  to  mean  the  same  as  if  it  were  qui  patres,  qiiique  con- 
scripti, which  for  shortness'  sake  became  patrcs  conscripti. 
The  smallness  of  the  number  of  patrician  members  then  ex- 
isting is  accounted  for  by  the  violence  of  the  last  Tarquin, 
which  spent  itself  chiefly  on  his  principal  foes.  Thus  much 
is  historical — that  there  were  plebeian  senators  like  P.  Lici 
nius  Calvus,  the  first  military  tribune  with  consular  power 
taken  from  the  plebs  (Livy,  v.,  12)  ;  and  it  is  probable  that 
numbers  of  wealthy  members  of  that  order  were  at  the  time 
mentioned  brought  into  the  patrician  council  in  order  to  add 
strength  to  that  body.  But  when  the  consuls  appointed  the 
senators,  as  the  kings  did  before  them,  and  when  the  patrician 
feeling  became  more  intense  after  the  power  of  the  kings  was 
taken  away,  it  is  probable  that  the  number  of  these  plebeian 
members  diminished  with  the  course  of  time.  It  was  good 
policy  to  choose  into  the  senate  a  few  such  men,  whose  in- 
terests on  the  whole  coincided  with  those  of  the  ruling  order, 
and  who  were  thus  in  a  degree  separated  from  the  humbler 
plebeians.  The  tradition  makes  the  plebeian  senators  to 
have  been  excluded  from  debate  ;  they  gave  no  opinion,  but 
on  a  division  went  to  the  side  or  quarter  which  they  preferred. 
When  the  consulship  was  open  to  this  order,  the  chief  magis- 
trates being  asked  their  opinion  before  the  rest,  this  degra- 
dation must  erelong  have  ceased. 

The  consuls,  and  afterwards  the  censors,  determined  who 


ARISTOCRACY. 


17 


should  belong  to  the  senate,  until  the  Ovinian  law — of  un- 
certain date  but  enacted  not  very  long  after  the  consulship 
was  opened  to  plebeians — "  conferred  a  seat  and  a  vote  in  the 
senate  provisionally  on  every  one  who  had  been  curuleedile, 
praetor  or  consul,  and  bound  the  next  censors  either  formally 
to  inscribe  these  expectants  upon  the  senatorial  roll,  or,  at 
any  rate,  to  exclude  them  from  the  roll  only  for  such  reasons 
as  sufficed  for  the  rejection  of  an  actual  senator."  *  The  offi- 
cers who  made  the  lists  of  senators  had  in  general  the  power 
of  calling  in  persons  who  had  filled  no  curule  office,  when 
the  number  of  three  hundred  was  not  reached  by  those  who 
had  filled  a  magistracy  from  the  quaestorship  upward  ;  and 
tne  censors  at  least  could  thrust  out,  for  reasons  alleged, 
such  persons  as  were  by  them,  judged  unworthy  of  a  seat,  on 
account  of  some  moral  or  other  stain  on  their  character. 
With  this  exception  the  senators  held  their  office  for  life  as 
before.  The  tribunes,  be  it  here  remarked,  were  not  as  such 
originally  members  of  the  senate,  but  acquired  the  right  of 
taking  their  scats  in  front  of  the  curia,  where  they  could 
examine,  and,  if  they  pleased,  object  to  a  decree  of  that 
body.  Afterwards  by  the  plebiscitum  Atinium  (634  U.  C, 
=  130  B.  C.)  entrance  into  the  senate  was  conceded  to  them, 
and  they  retained  their  senatorial  rank  even  when  Sulla  had 
taken  away  some  of  their  important  powers.  In  the  last 
century  of  the  republic  the  senate  considerably  exceeded 
three  hundred.  At  least  we  find  that  Cicero,  on  one  occa- 
sion, mentions  415  and  on  another  417  as  being  present, 
while  a  number  must  have  been  absent  in  their  provincial 
offices  or  for  other  reasons. 

The  functions  of  this  body,  composed  of  men  already 

♦Moinmsen,  Rom.  Hist.,  i.,  408  (book  ii.,  cliap.  3),  of  the  transl. 
But  it  is  not  clear  what  was  tlie  meaning  of  this  law.  For  the 
subject  comp.  Moininsen's  Roni.  Staatr.,  ii.,  pt.  i.,  p.  394,  onw.,  and 
I.angc,  Rom.  Alt.,  ii.,  §111.  1-ange  thinks  that  the  constitutional 
number  of  300  senators  was  reached  in  conse(|Mence  of  tlie  Ovinian 
law  only  at  tlie  time  of  the  lectio  senalus,  but  would  become  in- 
complete by  the  deaths  of  senators  during  a  lustrum. 
VOL.  II. — 2 


iS 


POLITICAL  SCIENCE. 


versed  in  public  affairs,  and  gathering  together  more  politi- 
cal experience  than  any  other  assembly  of  public  men  under 
any  form  of  government  whatsoever,  were  not  those  of  law- 
makers, but  of  a  council  of  administration.  With  the  consu- 
lar or  republican  constitution  the  importance  of  the  senate 
increased,  and  a  still  greater  increase  of  its  importance  was 
due  to  the  growth  of  the  territory  and  revenues,  and  the  vast 
amount  of  the  internal  and  external  affairs  of  Rome  requiring 
attention.  The  senate  was  in  truth  the  governing  institution 
at  Rome,  and  it  gave  unity,  system,  strength,  to  the  state, 
more  than  anything  else. 

The  principal  functions  of  the  senate,  when  it  had  reached 
its  full  efficiency,  or  from  the  second  Punic  war  onward,  were 
the  following  :  (i.)  It  had  a  general  superintendence  over  the 
state  religion.  Thus  in  327  U.  C,  the  jediles  were  directed 
to  see  to  it  that  none  but  Roman  gods  should  be  worshipped, 
and  they  only  after  the  ancestral  manner.  (Liv.,  iv.,  30.)  In 
56S  U.  C,  the  Scnatus  consultum  de  Bacchanalibus,  which 
is  still  extant,  was  made  in  order  to  prevent  the  spread  of  the 
immoral  and  politically  dangerous  orgies  of  Bacchus,  which 
had  recently  got  a  foothold  in  Italy,  and  even  in  the  city  of 
Rome  itself.  (Livy,  xxxix.  8-18.)  (2.)  Foreign  affairs  fell 
to  a  great  e.xtent  within  the  province  of  the  senate,  and  its 
principal  business  was  of  this  description.  In  regard  to  the 
declaration  of  war,  however,  it  had  no  absolute  and  final  de- 
cision. Even  under  the  kings  the  populus  was  consulted  as 
to  whether  a  war  should  be  undertaken  ;  and  therefore,  when, 
in  the  year  of  the  city  327,  according  to  Livy's  account  (iv., 
30),  there  was  a  controversy  whether  war  should  be  declared 
by  the  people  or  whether  a  resolution  of  the  senate  was  suffi- 
cient, we  must  probably  regard  the  war  as  a  continuation  of 
an  earlier  one,  which  truce  had  only  interrupted.  Such  con- 
flicts might  naturally  arise  without  an  assumption  on  the  part 
of  the  senate,  from  the  indefiniteiiess  of  administrative  power  ; 
or  a  provincial  governor  might  provoke  a  war  for  which  im- 
mediate measures  of  the  state  might  be  necessary.  War  be- 
ing declared  or  already  on  foot,  the  senate  decided  on  the 


ARISTOCRACY. 


19 


raising  of  levies  at  home  and  the  contingent  to  be  furnished 
by  the  aUies,  made  the  general  arrangements  for  expeditions, 
or  sometimes  put  a  skilful  commander  out  of  order  in  the  place 
of  one  who  had  drawn  a  province  by  lot,  one  consul,  for  in- 
stance, or  one  consular  man  in  the  place  of  another.  In 
short,  there  was  no  operation  of  war  over  which  it  had  not 
the  ultimate  control.  For  making  treaties  of  peace  a  magis- 
trate with  imperium,  as  a  commander  of  a  province,  had  the 
competence.  But  it  became  the  usage  generally  not  to  exer- 
cise this  high  authority,  but  rather  to  refer  those  who  sued 
for  peace  to  the  senate.  And  the  senate  still  retained  its 
part  in  making  treaties  of  peace  after  it  came  to  be  regarded 
as  constitutional  that  a  treaty  of  any  kind  was  invalid  without 
the  consent  of  the  Roman  community.  (Lange,  ii.,  §  117,  p. 
376,  ed.  I.)  In  order  to  do  its  appropriate  work  of  arranging 
terms  and  all  details,  which  were  to  be  laid  before  the  people, 
the  senate  was  wont  to  send  legates,  usually  ten  in  number, 
to  a  distant  province,  for  the  purpose  of  acting  with  the  com- 
manders in  the  field.  From  these  principal  acts  of  adminis- 
tration it  naturally  came  about  that  the  senate  had  all  diplo- 
matic business  in  its  hand  ;  it  heard  foreign  ambassadors ; 
kings  even  appeared  in  the  curia  to' transact  business  or  make 
requests  there.  The  senate,  again,  performed  acts  of  almost 
sovereign  power  towards  the  subjected  states  or  peoples,  de- 
cided as  to  the  condition  of  such  as  had  submitted  themselves 
in  war  to  the  Roman  state,  perhaps  in  connection  with  the 
joint  action  of  the  people  in  making  treaties.  The  details, 
also,  of  provincial  government  passed  under  its  review,  or 
were  subject  to  its  control.  Thus  the  appeals  of  the  provin- 
cials against  an  oppressive  governor  were  presented  to  this 
body  for  its  decision,  and  trials,  as  in  suits  rerum  repitunda- 
rum,  could  be  instituted  by  its  advice. 

(3  )  The  senate  had  supervision  over  public  property  and 
the  finances.  The  care  of  the  treasury,  the  control  of  all  re- 
ceipts and  expenses,  Polybius  justly  regards  as  its  principal 
duty.  The  quaestors,  he  says,  can  deliver  no  money  over 
without  resolutions  of  the  senate  giving  them  the  authority, 


20 


POLITICAL  SCIENCE. 


except  those  sums  which  are  paid  over  to  the  consuls  ;*  "  and 
its  permission  is  required  by  the  censors  when,  in  each  lus- 
trum, they  build  or  repair  public  buiidings,  w  hich  call  for  by 
far  the  most  important  and  considerable  outlays. "  (Polyb. ,  vi. , 
13.)  The  consuls  in  the  field,  and  dictators  also,  depended 
on  the  senate  for  their  supplies.  The  pubUc  land  was  under 
their  control,  so  that  they  could  send  out  colonies  and  assign 
plots  of  ground  to  settlers.  They  granted  money  for  public 
shows,  and  for  the  purchase  of  grain  to  be  distributed  among 
the  people,  gave  presents  to  foreign  ambassadors,  and  a 
dower  to  the  daughters  of  men  wha  had  deserved  well  of  the 
public.  They  could  even  remit  tribute  imposed  in  the  prov- 
inces or  in  Rome,+  or  required  them  to  be  paid  after  they 
had  been  remitted.  "  Such  gifts  the  senate  always  made  with 
the  reser\'ation,"  says  Appian  \^Iber.,  §  44),  "  that  they  should 
be  vahd  as  long  as  should  seem  good  to  the  senate  and  the 
people." 

(4.)  In  a  certain  sense  the  senate  had  a  share  in  legislation, 
not  as  a  properly  legislative  body,  but  by  the  weight  of  their 
authority  and  influence  over  the  proposers  of  laws,  w  ho  were 
willing  to  follow  the  advice  of  the  body  to  which  they  be- 
longed, or  who  dreaded  the  senate's  opposition.  But,  be- 
sides this,  scnatus  considta,  without  the  sanction  of  tlie  people, 
in  a  number  of  cases  acquired  the  force  of  laws.  Such  was 
the  case  in  the  provinces,  when  the  laws  might  be  regarded 
as  a  part  of  the  administration  in  the  given  case  ;  and  at  Rome 
a  decree  which  was  intended  to  bind  a  magistrate  in  a  partic- 
ular instance,  and  w^hich  properly  was  binding  on  him  only 
when  he  consented  to  obey  it,  and  for  his  year  of  office,  might 
be  found  by  the  succeeding  magistrates  a  convenient  guide 
for  their  practice,  and  might  thus  grow  into  a  custom.  This 
influence  over  legislation  was  not  confined  to  the  department 
of  administration,  but  extended  itself  into  both  civil  and  crim- 
inal law.  (Lange,  u.  s.,  p.  380.)  Hence,  under  the  empire 
it  could  be  said  that  "  a  senatus  consultum  had  the  force  of 


*  Present  in  Rome,  I^nge,  u.  s.,  p-  377-  t  Lange.  P-  378. 


ARISTOCRACY. 


21 


law,  although  that  had  been  questioned."  (Gaius,  i.,  4.)  A 
power  was  exercised  by  the  senate  also  of  giving  interpreta- 
tions of  the  laws  by  their  decrees.  Thus  a  senatiis  constiltiim 
.was  made,  on  motion,  as  we  should  say,  of  Cicero,  determin- 
'ing  certain  actions  to  be  violations  of  the  Calpurnian  law  con- 
cerning ambitus  passed  in  687  U.  C.  It  would  seem 
that  the  influence  of  the  senate  on  legislation  extended  and 
widened  in  the  latter  years  of  the  republic,  and  was  still  more 
important  in  the  early  empire,  as  the  legislative  capacity  of 
the  people  died  out. 

(5.)  The  senate,  without  having  any  proper-  jurisdiction, 
in  some  cases  aided  the  magistrates  in  administering  justice, 
especially  in  some  public  crimes,  such  as  those  of  poisoning  and 
murder,  when,  on  account  of  their  epidemic  nature,  they  dis- 
turbed the  quiet  of  Italy.  But  this  may  be  reduced,  perhaps, 
to  the  head  of  extraordinary  legislation  made  in  some  crisis, 
calling  for  summary  measures  for  the  public  safety.  Such 
was  the  resolution,  the  senatiis  consiiltinii  iiltiiniim,  as  it  has 
been  named,  by  which  the  consuls  were  called  upon  to  see  that 
the  republic  received  no  detriment,  or  that  the  iinpcrium  and 
the  majesty  of  the  Roman  people  should  be  guarded.  This 
decree,  which  gave  the  consuls  dictatorial  powers,  had  no 
formal  justification  to  urge  for  itself,  and  the  consuls,  in  exer- 
cising the  power  of  life  and  death  without  a  judicial  trial  in 
the  case  of  citizens  on  the  strength  of  this  decree,  would  act 
illegally  ;  but  its  obvious  plea  was  extreme  necessity. 

We  have  elsewhere  characterized  the  Roman  senate  as  the 
organ  first  of  an  aristocracy  composed  of  patricians  who 
monopolized  offices  constitutionally,  and  then  of  an  upper 
class  approaching  to  an  oligarchy,  yet  not  an  oligarchy  in  the 
worst  sense.  No  oligarchy,  if  that  name  best  describes  the 
ruling  order  in  the  last  ages  of  the  republic,  ever  had  so  able 
an  administrative  council.  When  we  consider  what  a  number 
of  men  were  there  assembled,  who,  as  pra.'tors  or  consuls, 
had  become  familiar  with  the  laws  of  their  country,  had 
served  in  foreign  campaigns  at  the  head  of  great  armies,  and 
were  familiar  with  the  military  and  financial  strength  of  the 


22 


POLITICAL  SCIENCE. 


nations  as  far  as  to  the  remote  east  and  west,  or  who  had,  as 
censors,  a  practical  acquaintance  with  the  pecuniary  resources 
of  Rome  and  the  way  of  managing  them  ;  and  when  we  con- 
sider also  that  these  men  must,  many  of  them,  have  been  in 
the  senate  for  thirty  or  five-and-thirty  years,  we  shall  hardly 
hesitate  to  regard  this  as  the  ablest  and  best  constituted  of 
the  councils  which  are  recorded  in  the  history  of  political 
institutions.  And  yet  this  perished  and  destroyed  the  repub- 
lic by  its  short-sightedness,  its  selfishness,  and  the  other  vices 
to  which  a  close  aristocracy  is  subject. 

^  1 80. 

At  first,  as  we  have  seen,  the  plebs  had  no  share  with  the 
2.  Increase  of  the  P^trician  geiitcs  in  the  political  power  of  the 
rights  of  the  plebs.  gt^te.  There  was  not  only  no  union  of  the 
orders,  but  the  constitution  prevented  a  union.  There  was 
no  intermarriage,  because  patrician  marriage  was  connected 
with  religious  rights  of  which  plebeians  could  not  partake  ; 
they  could  not  fill  the  office  of  priests  nor  take  auspices,  and 
on  this  latter  account  could  not  perform  consular  duties.  The 
religious  lore,  the  knowledge  of  times  and  seasons,  the  rules 
governing  the  forms  of  civil  processes,  were  patrician  mo- 
nopolies ;  and  certain  old  usages  required  the  assembly  of  the 
gentes — the  comitia  curiata,  in  which  they  had  no  part  ;  they 
had  no  organs  nor  assemblies  of  their  own  like  the  patrician 
class.  But  they  held  land,  they  made  contracts  with  patri- 
cians, they  belonged  to  the  military  organization  expressed 
in  the  comitia  centuriata.  That  wealthy  plebeians  were 
incorporated  into  the  senate  at  the  beginning  of  the  republic, 
has  been  already  mentioned.  As  soldiers  and  holders  of 
land,  they  could  not,  in  the  end,  fail  to  acquire  a  right  to 
political  equality.  But  the  aristocratic  feeling  now  became 
even  greater  than  before,  and  offered  fierce  opposition  to 
their  increase  of  rights  at  every  step.  Probably  the  wealthy 
plebeians,  who,  it  seems,  were  chiefly  the  descendants  of 
strangers,  including  frcedmen,  and  not  of  clients,  were  for 
some  time  not  greatly  discontented  with  their  position,  and 


ARISTOCRACY. 


23 


had  few  political  aspirations.  They  seem  to  have  been  quiet, 
unambitious  citizens,  as  much  afraid  of  the  lower  strata  of 
their  own  order  as  they  were  desirous  of  a  higher  place  in 
the  state. 

At  an  early  day,  after  the  banishment  of  the  Tarquin  fam- 
ily, the  right  of  appeal  was  given  to  all  citizens,  and,  accord- 
ing to  tradition,  by  a  member  of  the  Valerian  family,  which 
ranked  among  the  leading  patrician  gentes.  Formerly,  the 
king  had  decided  a  cause  and  had  determined  whether  the 
person  condemned  should  be  allowed  to  appeal  for  pardon. 
The  Valerian  law  of  245  A.  U.  C.=:509  B.  C,  ordered  that  the 
consul  should  allow  capital  sentences  and  those  requiring  cor- 
poral infliction  to  be  brought  by  appeal  before  the  comitia 
of  the  centuries.  This  was  reckoned  by  the  Romans  one  of 
the  great  safeguards  of  personal  liberty,  and  the  proposer 
of  it  was  gratefully  remembered. 

But  a  much  greater  step  in  favor  of  plebeian  rights  was 
taken,  when,  after  the  first  secession  of  the  plebeian  order,  in 
260  A.  U.  C,  by  a  treaty  between  the  senate  and  the  leaders 
of  the  plebs,  the  choice  of  two  tribunes,  afterwards  increased 
in  number  to  five  and  then  to  ten,  was  provided  for,  who 
were  to  be  elected  from  the  plebeian  order  exclusively,  to  be 
sacrosanct  in  their  persons,  and  to  have  the  right  of  giving 
aid  to  individual  plebeians  oppressed  by  patrician  magistrates, 
and  of  doing  business  with  the  people — the  "jus  agendi  cum 
plcbe."  For  the  purpose  of  choosing  them,  a  new  assembly, 
that  of  the  tribes,  was  afterwards  instituted,  in  which  the  tri- 
bunes presided,  and  which  could  pass  decrees  that  were  at 
first  binding  on  plebeians  alone,  or  plebiscites.*     As  the 

*  The  question  where  the  tribunes  were  elected  before  282,  is  a 
much  vexed  one.  Some,  however,  follow  Cicero  (frag,  orat.,  i.,  i)ro 
C.  Coi  nelio),  who  says,  "  itacjiie  auspicato  j)ostero  anno  decern  iribiuii 
l)lcbis  coiiiitiis  ciiriatis  creati  sunt," — wliere  the  number  of  ten  rests 
on  another  tradition  than  that  which  l,ivy  follows.  Dion.  Hal., 
vi.,  89,  has  tlie  same  tradition  in  regard  to  the  composition  of  the 
body  where  the  tribunes  were  chosen.  "  The  demus,  being  distri- 
buted into  the  then  existing  tppdrpai,  or  however  one  chooses  to  call 
them,  winch  they  now  call  curuc,  appointed  us  yearly  magistrates  the 


24 


POLITICAL  SCIENCE. 


person  of  the  tribune  was  sacred,  he  or  his  helpers  could 
rescue  an  arrested  person  out  of  the  consul's  hands,  and  thus 
protection  was  afforded  to  this  order  on  the  principle  of  one 
power  in  the  state  counteracting  another.  From  this  begin- 
ning, the  tribunitian  office  grew  in  importance  and  efficiency 
until,  although  without  imperium,  it  became  equiponderant 
with  that  of  consul  ;  and  the  subsequent  history  of  Rome 
turns  very  much  on  the  contests  in  which  tribunes  are  on  one 
side  principal  actors.  And  this,  too,  was  the  case  after  the 
old  distinctions  as  to  the  political  rights  of  the  two  orders 
had  become  obliterated.  The  plebs  had  ere  long,  if  enjoying 
the  right  of  suffrage,  two  assemblies  in  which  they  could 
exercise  it,  the  coinitia  of  the  centuries  and  that  of  the  tribes. 
The  patricians  met  with  them  in  the  first,  on  the  common 
ground,  and  had  their  own  assembly,  that  of  the  ciii-ice,  be- 
sides. But  this,  in  the  course  of  years,  became  an  unimpor- 
tant, antiquated  body,  where  no  political  rights  were  lodged, 
and  only  certain  forms  and  usages  required  its  existence. 

The  appointment  of  tribunes  both  parties  seem  to  have 
regarded  as  involving  the  existence  of  two  kinds  of  persons 
in  the  state  ;  and  it  really  perpetuated  that  political  duality 
out  of  which  it  grew,  more  than  any  other  measure  in  Roman 
history.  The  tribunes,  when  united,  could  hinder  any  meas- 
ure, block  the  wheels  of  the  senate,  and  procure  the  passage 

following  persons,  etc."  He  then  gives  the  names  of  five,  and  the 
sacral  oath.  So  in  ix.,  41,  he  says  that  Publilius  Volero  (who  is  called 
Piiblius  in  the  present  text),  got  a  law  to  be  passed  concerning  the 
tribunitian  elections,  to  transfer  them  from  the  (f>paTpLaKrj  ipr]<j)o(f>opia, 
which  the  Romans  call  the  airiata,  to  that  of  the  tribes.  So  also  x., 
4.  And  Livy  says,  ii.,  58  (282  A.  u.  c),  tributis  comitiis  creati  tri- 
buni  sunt.  Wachsmuth,  Hu.schke,  Mommsen  (u.  s.,  i.,  361,  trans.), 
accejjt  this  view,  which  in  itself  is  extremely  improbable.  Schweg- 
ler,  Rom.  (Jesch.,  ii.,  543  secj.,  L.  Lange,  Rom.  Alt.,  i.,  440,  cd.  i., 
reject  it  as  a  historical  bhnuler.  Niebulu-,  Walter,  Arnold,  hist,  of 
Rome,  i.,  148,  note  34,  think  that  the  ciiriic  confirmed  the  choice. 
See  the  references  in  Schwegler.  Rein  in  I'auiy's  Real-F.ncycl.,  vi., 
2ti4,  dissents  from  tiiis.  iiekker  tries  to  show  that  tlie  choice  took 
place  in  tliecomilia  centuriata  (llandb.,  ii.,  2,  253-259),  and  Lange 
agrees  with  him. 


ARISTOCRACY. 


25 


of  plebiscites,  which  by  and  by  gained  the  force  of  laws  bind- 
ing on  all  citizens.  But,  as  one  could  stay  the  proceedings 
of  the  rest,  it  was  not  difficult  to  cause  disunion  among  them 
by  influences  of  one  kind  or  another.  They  appear  in  all 
the  dissensions  of  Rome,  and  especially  in  the  later  times  of 
the  republican  state,  when  they  are  found  generally  opposing 
the  interests  of  the  optimatcs  and  the  senate — the  tribune 
Octavius,  who  opposed  his  colleague  C.  Gracchus,  being  one 
of  the  exceptions — and  they  contributed  more  than  any 
other  magistrates  to  the  downfall  of  the  republic.  With  all 
this  they  did  much  good.  The  tribunate  had  its  use,  says 
Mommsen  (u.  s.,  i.,  359),  in  pointing  out  legitimate  paths  of 
opposition,  and  averting  many  a  wrong  ;  but  it  is  equally 
evident  that,  where  it  did  prove  useful,  it  was  employed  for 
very  different  objects  from  those  for  which  it  had  been  es- 
tablished. "The  bold  experiment  of  allowing  the  leaders 
of  the  opposition  a  constitutional  veto,  and  of  vesting  them 
with  a  right  to  assert  it  regardless  of  consequences,  proved 
to  be  an  expedient  by  which  the  state  was  politically  un- 
hingctl  ;  and  social  evils  were  prolonged  by  useless  pallia- 
tives." And  again,  "  this  singular  magistracy  presented  to 
the  commons  an  obvious  and  available  aid,  and  yet  could  not 
possibly  carry  out  the  necessary  economic  reforms  [those 
relating  to  the  bad  taxation,  the  system  of  credit  and  the 
occupation  of  the  domain-lands  by  the  upper  classes].  It 
was  no  proof  of  political  wisdom,  but  a  wretched  compromise 
between  the  wealthy  aristocracy  and  the  Icadcrless  multitude. " 
(u.  s.,  i.,  358.) 

The  years  following  the  establishment  of  the  tribunate 
were  filled  with  violence,  one  of  the  worst  instances  of  which 
was  the  murder  of  the  tribune  Genucius  in  281  A.  U.  C, 
just  before  his  impeachment  of  two  ex- consuls  was  to  be 
tried.  This  had,  it  would  seem,  the  usual  effect  of  political 
crimes— it  benefited  the  other  party  ;  for  in  283  U.  C,  a  law 
of  Publilius  Volero  was  proposed,  by  which  the  plebeian  as- 
semblies of  the  tribes  (the  coinitia  tiibula)  were  first  intro- 
duced, and  was  cariicd  ;  at  the  same  time,  it  is  probable  that 


26 


rOLITICAL  SCIENCE. 


plebiscites,  if  approved  by  the  senate,  were  to  have  equal 
validity  with  laws  passed  in  the  coinitia  centuriata.  (Momm- 
sen,  i. ,  361.) 

A  few  years  later,  in  292,  one  of  the  tribunes,  with  the  ob- 
ject, it  would  seem,  of  lessening  the  consuTs  impcriinn  in 
judicial  matters,  proposed  a  revision  of  the  laws,  so  that  a 
fixed  form  should  be  given  to  them  and  arbitrary  judgments 
be  prevented.  After  years  of  strife  this  project  was  carried, 
and  the  laws  of  the  twelve  tables  were  compiled.  The  aris- 
tocracy during  the  strife  endeavored  to  pacify  the  minds  of 
the  opposite  party  by  several  concessions,  namely,  that  the 
number  of  tribunes  should  be  raised  from  five  to  ten  (297 
U.  C),  so  that  two  should  be  elected  from  each  class  ;  that  the 
part  of  the  Aventine  mount  which  had  been  public  land, 
should  be  assigned  to  poorer  plebeian  citizens  for  building 
purposes  (298  U.  C.)  ;  and  that  the  power  of  imposing  fines, 
which  had  been  without  limits  exercised  by  the  consuls, 
should  be  restricted  (300  U.  C.)  This  was  a  great  relief,  as 
fixing  a  maximum  of  fines,  as  giving  the  power  to  all  the  mag- 
istrates of  imposing  them  and  thus  disconnecting  them  with 
the  consul's  imperium,  and  probably  as  allowing  appeal  from 
the  magistrates'  decision.* 

The  commission  for  making  a  code  was  not  carried  in  the 
way  in  which  the  plebeians  desired.  They  wished  a  share  in 
the  codification,  but  the  other  party  would  not  consent,  on 
the  pretext  that  it  was  necessary  to  clothe  the  commission 
with  the  imperium,  since  alterations  in  the  constitution  could 
be  brought  to  pass  according  to  usage  only  by  persons  in- 
vested with  that  power  ;  while  plebeians  could  have  no  impe- 
rium granted  to  them,  both  for  political  and  for  religious 
reasons.  The  commissioners  for  preparing  the  code,  ten  in 
number,  were  invested  with  consular  imi)crium,  and  thus 
superseded  the  existing  chief  magistrates,  although  it  is  not 
made  out  that  this  regime  was  meant  to  be  lasting.  The 
decemvirs  not  having  finished  their  work,  a  new  set  were  ap- 


*  Sec  I..  Lange,  Rom.  .\lt.,  i.,  §  72. 


ARISTOCRACY, 


27 


pointed,  among  whom,  besides  a  part  of  the  old  ones,  some 
new  men  from  tlie  plebeian  order  appear.  Witiiin  the  board 
a  plan  of  securing  oligarchical  power  seems  to  have  been 
cherished,  and  the  leading  decemvir  allowed  himself,  accord- 
ing to  the  story,  to  commit  great  atrocities,  which  led  the  plebs 
to  make  another  secession.  By  a  combination  of  patriotic 
men  of  both  parties,  the  decemviral  power  was  overthrown, 
the  old  magistrates,  including  the  consuls  and  tribunes,  were 
restored,  and  the  law  proposed  by  the  consuls  Valerius  and 
Horatius  (the  lex  Valeria  Horatia)  not  only  repeated  the  old 
Valerian  law,  allowing  appeal  from  a  judicial  sentence  to 
.death  or  stripes,  but  enacted  also  that  qtiod  tribiitim  populiis 
jiississct  populicni  teneret  (Livy,  iii.,  55),  that  laws  passed  in 
the  comitia  tributa  should  be  binding  on  the  patricians  as 
well  as  on  the  other  order.  To  these  another  law,  repeating 
in  substance  the  old  Valerian  law  against  tyrants,  was  added, 
that  no  magistrate  from  whose  sentences  there  could  be  no 
appeal  should  be  created  ;  that  any  person  who  had  procured 
the  creation  of  such  a  magistrate  might  be  killed  without 
breach  of  law  or  of  religious  obligation  ;  and  that  such  kill- 
ing should  not  be  held  to  be  a  c.ipital  crime.  (Livy,  u.  s.) 

The  law  of  the  twelve  tables  contained  very  little  of  a  j^olit- 
ical  nature  which  had  not  been  regarded  as  law  before,  and 
thus  did  not  essentially  change  the  relations  of  the  orders. 
The  contests,  therefore,  necessarily  were  renewed.  In  309, 
U.  C,  the  tribune  Canuleius  struck  at  one  of  the  main  causes 
of  separation  between  the  orders,  by  a  law  which  made  mar- 
riage legitimate  between  a  patrician  and  a  plebeian.  In  the 
same  year  a  proposition  was  made  that  one  of  the  consuls 
might  be  selected  from  a  plebeian  family.  The  first  of  these 
was  aided,  no  doubt,  by  social  good  feeling  between  patricians 
and  weallhy  citizens  (jf  the  other  order.  It  is  likcK',  also, 
that  marriages  had  taken  place  between  the  orders,  although 
the  child  of  a  plebeian  mother  followed  her  in  her  rank. 
Both  propositions  were  opposed  on  religious  pretexts.  If 
the  blood  was  mixed,  the  auspices  would  Vjc  impure.  If,  on 
the  other  hand,  marriage  were  to  be  free  without  affecting 


28 


POLITICAL  SCIENCE. 


civil  status,  the  child  of  a  plebeian  father  or  mother  might  be 
created  consul  without  offence  against  religion.  The  social 
feeling  respecting  intermarriage,  in  which  the  rich  plebeian 
alone  could  have  had  a  great  interest,  enabled  them  to  carry 
their  point.  The  other  must  have  soon  followed,  but  for  a 
proposal  that  met  with  success,  that  military  tribunes  with 
consular  imperium  should  be  the  chief  magistrates  in  the  place 
of  consuls.  This  may  be  regarded,  perhaps,  as  a  compromise 
between  the  parties,  for  members  of  either  could  fill  this  post 
of  military  tribune  in  the  army.  But— what  shows  that  the 
concession  was  wrung  from  the  patrician  party — everything 
about  this  magistracy  was  left  at  loose  ends  ;  the  senate  was 
to  make  a  decision  every  year  whether  the  chief  magistrates 
should  be  tribunes  with  consular  power,  or  consuls.  The 
former  had  this  to  recommend  it,  that  the  exigencies  of  war 
might  require  the  presence  of  both  consuls  in  the  field,  and 
the  military  tribunes — three,  afterwards  six  in  number,  then 
six  for  each  legion — had  been  officers  of  the  army  from  the 
oldest  time.  Yet  the  grant  of  imperium  to  them,  as  they 
might  be  plebeians,  was  a  giving  up  of  the  patrician  point,  as 
far  as  the  non-military  iinperiicin  was  concerned.  But  they 
had  no  right  of  triumph,  and  in  some  other  respects  stood 
below  the  consuls  in  dignity. 

The  ofiice  of  consular  tribunes  continued  from  310  to  387, 
U.  C,  with  some  interruptions  of  years  when  consuls  were 
aj)pointed.  Of  these  years  two-and-tvventy  had  consuls,  and 
fifty-one  military  tribunes  for  the  chief  magistrates.  The 
greater  part  of  the  time  patricians  won  the  elections,  which 
seems  to  show  that  the  poorer  plebeians  cared  little  about  re- 
warding the  wealthier  men  of  their  order  with  places  ;  to  them 
the  disability  was  of  little  value.* 

Early  in  this  period  (prob.  in  311,  U.  C,  or  in  319^  the  pa- 
tricians managed,  by  separating  from  the  consulship  the 
function  of  holding  the  census,  to  constitute  a  new,  very  im- 

♦Cornp.  L.  T.ange,  i,  §  76,  Nfommsen,  Hist.,  i.,  374,  Staats.,  ii., 
I,  §  165-175,  for  the  consular  tribunes. 


ARISTOCRACY. 


29 


portant  power  in  the  state,  that  of  the  censors.  Livy  ascribes 
its  origin  to  the  military  duties  of  the  consuls,  which  left  them 
no  leisure  to  hold  the  census,  so  that  it  had  been  neglected 
for  many  years.  But  he  also  adds  that  the  proposition  was 
welcomed  in  the  senate  "  in  order  that  there  might  be  more 
patrician  magistrates  in  the  republic.  (Liv.,  iv.,  §  8.)  It 
had  then,  we  may  suppose,  a  motive  for  its  existence  in  the 
patrician  spirit,  which  is  so  much  the  more  probable  because 
the  tribunes  with  consular  power  exceeded  the  consuls  in 
number.  The  office  was  opened  to  plebeians  after  the  Licin- 
ian  plebiscite  of  387,  and  probably  as  a  consequence  of  this 
law  without  any  other  express  legislation.  With  the  growth 
of  Rome  it  increased  in  importance  and  dignity.  Besides  the 
quinquennial  census  and  lustrum,  the  financial  affairs  of  Rome 
fell  into  the  censors'  hands,  with  a  certain  moral  supervision 
over  the  community,  the  lectio  scnatns,  and  other  business. 
For  this  office  able  and  experienced  men  of  years  were 
usually  selected,  and  the  optimates,  in  the  later  Roman  aris- 
tocracy, generally  were  the  incumbents.  In  403  U.  C, 
both  censorships  were  thrown  open  to  plebeians,  and  shortly 
after  it  was  made  necessary  that  one  censor  should  be  of  that 
order. 

The  Quaestors,  first  mentioned  in  269  u.  C,  a  little  after 
the  tribunate  was  instituted,  may  have  been  coeval  in  their 
origin  with  the  consuls,  with  whom  they  were  closely  asso- 
ciated. In  the  year  333  u.  C,  their  number,  at  first  two,  was 
enlarged  to  four,  and  at  the  same  time  the  office  was  thrown 
open  to  plebeians,  the  first  properly  patrician  magistracy 
on  which  that  party  relinquished  its  exclusive  hold.  (Livy 
•v.,  43  }*  It  was,  perhaps,  their  supervision  of  tlie  military 
chest  and  of  the  spoils  which  brought  about  this  measure,  soon 
after  the  consular  tribunate,  open  to  both  orders,  and  with 
which  the  quaestors  were  closely  joined  in  ofl^cial  service,  was 
established. 

•  For  the  qnaestorship  and  its  origin,  see  Momnis.,  Roin.  Staatsr., 
11.,  under  this  title. 


30 


POLITICAL  SCIENCE. 


The  consular  tribunate  was  terminated  in  387  U.  C,  by 
Licinian  laws.—  thc  Liciniau  laws,  which  indicate  a  combination 

Consulate  and  other  i  i  i    i  • 

high  offices  opened,  bctwcen  thc  Wealthy  plebeians  and  the  poorer 
citizens  of  that  order,  especially  the  smaller  farmers.  After 
a  number  of  years  of  strife  and  almost  anarchy,  in  which  the 
tribunes  C.  Licinius  Stolo  and  L.  Sextius  Lateranensis  led 
the  opposition,  the  measures  which  they  advocated  were 
carried.  They  were  the  follov\-ing  :  I.  That  after  deducting 
the  paid  interest  from  the  amount  owed  by  debtors,  the  re- 
mainder of  a  debt  should  be  paid  in  three  instalments.  If  it 
was  intended  by  this  law  not  to  deduct  all,  but  only  the  extra 
legal  amount  of  the  interest  from  the  capital  of  the  debt,  this 
measure,  as  L.  Lange  remarks,  loses  its  appearance  of  cut- 
ting down  a  debt  (u.  s.,  i.,  §  78,  p.  492,  ed.  l)  ;  otherwise  it 
could  be  excused  only  on  account  of  the  bankruptcy  of  the 
debtors.  2.  Another  article  provided  "  ne  quis  plus  quin- 
genta  jugera  agri  possideret,"  by  which  is  probably  to  be 
understood  that  no  one  should  occupy  more  than  five  hundred 
jugera  of  public  land.  In  the  same  article  or  law  there  was 
this  further  provision,  that  no  one  should  pasture  on  tlie  pub- 
lic land  more  than  one  hundred  head  of  large  and  five  hun- 
dred of  small  cattle,  and  that  a  certain  number  of  free  labor- 
ers should  be  employed  upon  the  land.  (Appian,  B.  Civ.,  i., 
8.)  3.  The  third  article  was  that  no  comitia  for  military 
tribunes  should  be  held,  and  tl  a:  one  of  the  consuls  should 
be  a  plebeian.  As  this  was  somewhat  ambiguous,  it  was 
resolved  in  411  U.  C,  that  both  consuls  might  be  created 
from  that  order.  As  the  question  of  eligibility  to  the  prin- 
cipal office  was  now  settled,  it  was  easier  to  determine  con- 
cerning the  others.  In  398  U.  C. ,  the  dictatorship  was 
filled  by  a  plebeian  ;  both  censorships  were  open  to  them 
in  403,  as  we  have  before  had  occasion  to  mention  ;  but 
until  474  that  censor  who  was  a  patrician  did  not  allow  his 
colleague  to  perform  the  lustral  sacrifices  with  which  the  cen- 
sus was  closed.  Thc  power  also,  which  the  senate  had 
before  exercised  at  times,  of  pronouncing  a  law  passed  in 
the  comitia  of  thc  centuries  unconstitutional,  was  taken  away 


ARISTOCRACY. 


31 


from  them  in  415  U.  C,  by  a  law  of  the  plebeian  dictator 
Q,  Publilius  Philo,  if  that  be  the  meaning  of  Livy's  words 
(viii.,  12),  "  ut  legum  quae  comitiis  centuriatis  ferrentur  ante 
initum  suffragium  patres  auctores  fierent,"  i.  e.,  that  the 
senate  should  give  its  recommendation  and  sanction  before 
the  suffrages  were  cast,  whatever  the  future  law  was  to  be, 
which  would  thus  be  a  formal  sanction,  necessary  simply  on 
account  of  an  old  custom.  The  other  laws  of  this  same  dic- 
tator, who,  it  is  worth  mentioning,  acted  in  conjunction  with 
a  patrician  colleague  disaffected  towards  his  own  order,  were 
that  plebiscita  should  be  binding  on  all  citizens,  and  that 
whenever  the  law  should  allow  both  censors  to  be  plebeians, 
one  at  least  should  be  taken  from  that  order.  The  first  of 
these  laws  took  away  its  political  significance  from  the  comi- 
tia  of  the  curia:,  and  from  the  senate  its  power  of  obstructing 
the  legislation  in  the  assembly  of  the  whole  people. 

At  the  time  of  the  Licinian  laws  an  officer  was  appointed 
who  bore  the  name  of  prcetor,  by  which  the  consuls  were 
designated  at  an  early  period,  and  who  was  intended  to  per- 
form most  of  the  judicial  functions  which  had  devolved  on 
them,  and  perhaps  on  an  assisting  officer.  The  motive  of 
the  patricians  in  separating  the  judicial  functions  from  the 
consulate  may  have  been  to  keep  at  least  this  portion  of  the 
consul's  duties  in  the  possession  of  their  order  ;  but  in  417 
U.  C,  the  same  Publilius  Philo  of  whom  we  have  spoken  w:;s 
made  the  first  plebeian  prittor,  much  to  the  dissatisfaction 
of  the  patricians,  but  with  no  great  opposition  on  their  part. 
(Livy,  viii.,  15). 

No  civil  office  was  now  beyond  the  reach  of  the  plebeians, 
for  the  dictatorship  of  C.  Marcius  Rutilus,  the  first  dictator 
from  that  oider  in  398  U.  C,  eleven  years  after  the  passage 
of  the  Licinian-Sextian  laws,  was  cither  sanctioned  by  some 
unknown  law,  or  followed  the  precedent  of  the  consulate  with- 
out opposition.  But  all  the  public  priests  were  still  patricians, 
except  the  diioviri,  afterwards  decemviri,  sacris  fneitiiidis, 
who  by  a  rogation  of  3<S7  u.  C— either  the  same  which  opened 
the  consulate  or  another  (Comp.  Livy,  vi.,  37  and  42)  — were 


32 


POLITICAL  SCIENCE. 


to  be  chosen  in  equal  number  from  the  two  orders.  This 
was  the  more  easily  carried,  because  the  office  this  college 
was  to  consult  and  report  upon  the  Sibylline  books  and  other 
oracles,  and  although  their  functions  were  very  important  as 
relating  to  the  introduction  of  new  religious  rites,  they  had 
little  connection  with  the  old  religious  rites  of  Rome.  The 
Ogulnian  law,  called  after  two  tribunes  bearing  that  name  and 
passed  in  454  U.  C,  required  that  four  plebeian  members 
should  be  added  to  the  college  of  pontifices,  and  five  to  that 
of  augurs,  so  that  the  first  would  consist  of  eig!?t  and  the 
other  of  nine.*  (Livy,  x.,  7).  These  members,  according  to 
an  old  Roman  usage,  were  added,  it  would  seem,  by  coop- 
tation  ;  until,  in  649  or  650  U.  C,  by  a  law  of  the  tribune 
Domitius,  a  vote  of  a  minority  of  the  tribes,  being  convoked 
for  the  purpose,  prescribed  to  the  colleges  whom  they  should 
associate  with  themselves  by  cooptation.  (Comp.  Cic.  de  1. 
agrar.,  ii.,  7-)t  Three  or  four  colleges  of  priests  and  reli- 
gious brethren  remained  in  the  exclusive  possession  of  the 
patricians  ;  these  were  the  three  greater  flamines,  the  rex 
sacrorum,  the  Salii,  and  probably  the  fratres  arvales,  none  of 
them  of  political  importance. 

The  patricians,  being  skilled  in  the  knowledge  of  forms 
legal  and  religious,  kept  the  people  dependent  on  them  for 
information  in  this  I'espcct  until  the  time  of  Appius  Claudius 
the  blind  (450  U.  C),  who  is  said  by  a  Roman  lawyer  to  have 
reduced  the  /cgis  actio7ies  to  a  form,  and  whose  scribe  surrep- 
titiously disclosed  them  to  the  people  ;  or,  as  Pliny  says, 
obtained  their  favor  by  making  known  the  days  on  which 
law  business  could  be  transacted.  This  knowledge  had  been 
confined  to  the  pontifices,  or  at  least  was  so  little  known, 
that  the  people  had  to  learn  what  days  were  such  by  daily 
inquiries  made  to  a  few  of  the  principal  men.  This  event 
was  nearly  contemporary  with  the  Ogulnian  law,  and  may 

*  Comp.   Marquardt   in   lk'ker-.\rarquardt's  Rom.   Allcrth.,  iv., 
.347- 

f  Com]).  Orclli's  index  Icgum,  in  his  cd.  of  Cic.  Op.,  vni.,  p.  172, 
and  sec  Mommsen's  R.  Staatsr.,  ii.,  1,  25,  26. 


ARISTOCRACY. 


33 


be  regarded  as  a  part  of  the  same  general  attempt  to  take 
away  monopolies  from  the  patrician  order.  Had  they  re- 
tained within  their  order  the  knowledge  of  law,  of  the  calen- 
dar, of  religious  festivals,  of  the  sacred  rites  and  books,  their' 
influence  must  have  continued  great,  if  not  unassailable. 
The  Licinian  laws  broke  their  power.  The  next  sixty  years 
complete  the  system  of  political  equality  in  all  important 
respects. 

The  victories  which  thus  brought  the  two  orders  to  an 
equality  of  rights,  were  waged  principally  for  the  benefit  of 
the  wealthy  plebeians.  Henceforth,  until  the  fall  of  the  re- 
public, the  possession  of  wealth  and  honors,  which,  to  a  great 
extent,  the  optiniates  contrived  to  keep  in  their  hands,  con- 
stituted an  oligarchic  party  with  no  superior  rights  but  of 
vast  influence.  The  few  new  men,  like  Cicero,  who  won  their 
way  to  honors  and  a  place  in  the  senate,  were  generally  of 
this  faction.  Many  of  the  old  patrician  names  disappear  from 
the  fasti  in  process  of  time,  the  families  being  either  extinct 
or  reduced.  Thus  it  is  only  the  earlier  annals  that  give  us 
patrician  consuls  bearing  the  names  yEbutius,  Aternius,  Curi- 
atius,  Foslius,  Gcganius,  Genucius,  Herminius,  Horatius, 
Lartius,  Menenius,  Nautius,  Numicius,  Romilius,  Tullius, 
Virginius,  and  others.  The  Fusii  Camilli  disappear  with  the 
grandson  of  the  great  Camillus,  to  reappear  four  centuries 
afterwards  in  8  A.  D.  The  Sergian  gens  is  out  of  sight  for 
centuries  until  Catiline  makes  it  notorious.  On  the  other 
hand,  the  Licinii,  Domitii,  Caecilii  (Metelli),  Marcii  Philippi, 
Porcii,  Octavii,  to  which  the  emperor  Augustus  belonged, 
Aurelii  and  others,  were  plebeian.  The  patrician  gentes 
would  have  died  out,  probably  to  a  greater  extent  still,  if  in- 
termarriage between  the  orders  had  not  been  allowetl,  and  the 
narrowness  of  a  privileged  cliciue  would  have  undcrminctl  the 
respect  the  Romans  felt  for  an  ancient  line.  Thus  the  meas- 
ures by  which  the  exclusive  patrician  possession  of  office  was 
taken  from  this  order  contributed  to  its  preservation.  The 
rich  members  of  the  picbs  really  helped  the  order  which  it 
stripped  of  its  birthright. 

VOL.  II. — 3 


34 


POLITICAL  SCIENCE. 


A  word  or  two  will  close  what  we  hav^e  to  say  further  of 
the  optiniates.  Their  ability  to  retain  the  senate  in  their 
hands  enabled  them  to  control  the  administration,  as  the  sen- 
ate was  composed  of  past  officers  above  the  rank  of  quaestors. 
Their  wealth  helped  them  greatly  to  secure  offices,  and  their 
offices  to  gain  wealth.  Two  things  are  deserving  of  notice  in 
this  connection  in  the  later  age  of  the  republic.  One  is  the 
prevalence  of  avibitiis,  which  no  law  was  able  to  repress. 
The  detailed  account  given  by  Lange  in  the  third  volume 
of  his  Staatsalterthiimer,  is  most  instructive,  as  showing  the 
greatness  of  the  evil  and  the  difficulty  of  rooting  it  out.  The 
other  is  the  social  decay  of  Rome.  On  the  one  side  were 
the  men  of  immense  estates,  the  companies  that  farmed  the 
taxes,  the  men  of  commerce  who  supplied  Italy  with  grain  ;  on 
the  other,  the  impoverishment  of  the  poorer  citizens,  the  ad- 
mission into  the  army  of  persons  with  a  lower  census  than  be- 
fore, or  of  such  as  had  no  property,  who  had  the  feelings  of 
mercenaries  rather  than  of  citizens  ;  the  buying  out  of  small 
farmers  and  using  the  labor  of  slaves  on  lands  before  culti- 
vated by  freemen  ;  the  crowds  of  paupers  that  found  their 
way  to  Rome  and  needed  to  be  helped  to  live  by  "  frumen- 
tations."  Such  extremes  naturally  gave  birth  to  parties  in 
the  state.  The  factions  of  Sulla  and  Marius  fought  for  no 
important  political  question  ;  the  captains  stood  at  the  head 
of  great  armies,  and  whichever  conquered  was  likely  to  intro- 
duce irresponsible  power.  The  new  political  arrangements 
of  Sulla  lasted  but  for  a  short  time  after  his  death,  and  had 
in  themselves  no  element  of  stability.  The  subsequent  strug- 
gles were  even  less  political,  except  so  far  as  an  unwise, 
short-sighted  senate  endeavored  to  retain  its  hold  on  the  ad- 
ministration. It  evidently  was  incompetent  to  guide  the 
republic.  Tlic  head  of  an  army  was  sure  to  be  the  master, 
if  he  had  ability  and  sufficient  force  at  once.  Ca:sar  had  this 
ability,  while  his  adversaries  showed  weakness  and  disagree- 
ment. Thus  the  power  fell  to  one  man,  although  the  ancient 
forms  were  retained  as  far  as  possible,  and  to  a  man  who  him- 
self belonged  to  the  class  of  the  patricians  and  the  optimates. 


ARISTOCRACY. 


35 


The  old  story  repeated  itself  of  an  aristocracy  overturned  by 
its  own  disaffected  members. 

The  history  of  Rome  down  to  the  empire  is  the  most  in- 
teresting chapter  of  poHtics  that  the  world  affords,  with  the 
exception,  perhaps,  of  that  of  England.  The  steady  growth 
of  the  plebeian  party,  the  struggles  carried  on  without  civil 
war  until  Sulla's  time,  the  growth  of  law  while  the  polity  was 
slowly  changing,  all  rest  on  the  good  habits  of  the  old  populus, 
on  the  patria  potestas,  the  punctilious  religiousness,  the 
morality,  the  dislike  of  change  until  it  was  inevitable,  until 
wealth  and  conquest,  want  of  faith,  and  a  low  populace,  de- 
stroyed the  Roman  character.  Nowhere  do  we  see  a  more 
evident  connection  between  politics  and  the  character  of  a 
community.  Nowhere  was  the  fall  of  a  community  so  com- 
plete and  so  hopeless. 

§  i8r. 

Rome  was  a  political  state.    Two  remarkable  states,  one 
Government    of  '^^  rival  Carthage,  the  other  Venice,  were  com- 
Carih.igc.  mercial  states  ;  they  were  founded  and  grew  up 

to  promote  industry.  They  both  were  aristocratic,  and  spe- 
cimens of  that  form  of  government  deserving  of  study.-  We 
shall  consider  them  next  in  order. 

The  early  history  of  Carthage  is  but  imperfectly  known. 
The  foundation  of  the  city  is  referred  by  Josephus  to  about 
the  year  870  B.  c,  and  by  Apion  to  the  seventh  Olympiad 
(c.  Apion,  i.,  17,  ii.,  2),  and  is  said  to  have  been  287  years  later 
than  that  of  Utica.  Carthage  was  a  colony  of  Tyre,  and  at 
first  a  dependency,  it  is  possible,  of  Utica.  Its  growth  may 
have  been  accelerated  by  migrations  from  Plui-nicia  in  cent, 
viii.  B.  C,  and  afterwards.*     In  the  time  of  Cambyscs  (525 

*  "The  flourisliing  of  Cartli.ige  was  accompanied  by  a  parallel 
decline  in  the  great  cities  of  the  PlKeniciaii  mother  country,  in  Sidon 
and  especially  in  'I'yre,  the  prosperity  of  which  was  destroyed  jiarliy 
by  internal  commotions,  jjarlly  Ijy  the  pressure  of  external  calami- 
ties, i)ai;ticiilariy  of  its  sieges  i)y  Salmanassar  in  the  fu  st,  Nebucliad- 
onosor  in  the  second,  and  Alexander  in  the  fifth,  century  of  Rome. 


36 


POLITICAL  SCIENCE. 


B.  C),  it  seems  to  have  stood  at  the  head  of  the  Phoenician 
colonies  in  Africa,  for  the  Persian  king  planned  an  expedition 
against  it  by  name  (Herodot.,  iii.,  19),  which  was  broken  up 
by  the  refusal  of  the  Phoenicians  to  make  war  on  their  child- 
ren. About  the  same  time  Mago  flourished,  who,  according 
to  Justin  (B.  19),  laid  the  foundations  of  the  Punic  power,  and 
was  followed  in  his  martial  career  by  his  sons  and  grandsons. 
A  war  with  the  natives  now  broke  out,  proceeding  from  a 
demand  of  theirs  for  payment  of  a  ground  rent  on  the  soil 
of  the  city,  which  was  ended  by  the  payment  of  what  had 
been  long  due.  Some  time  afterwards  the  Africans  were 
forced  to  return  this  money.  Wars  likewise  were  waged  with 
Sardinia  and  the  Greeks  of  Sicily,  who  sent  to  Sparta  for 
help.  At  this  time  ambassadors  came  from  Darius  ordering 
the  Carthaginians  to  refrain  from  sacrificing  human  victims, 
from  eating  dog's  flesh,  and  from  burying  rather  than  burn- 
ing their  dead, — which,  if  the  story  is  worthy  of  credit,  seems 
to  show  that  he  looked  upon  the  colonists  of  his  subjects  in 
Phoenicia  as  his  subjects  also.  More  important  is  what  Justin 
goes  on  to  say,  that  Carthage,  disturbed  by  the  great  power 
of  Mago's  posterity,  "  chose  a  hundred  judges  from  among 
the  senators,  whose  business  it  should  be  to  demand  accounts 
from  the  military  leaders  on  their  return  from  their  wars,  and 
induce  them  so  to  make  use  of  their  military  power  as  to 
respect  judicial  sentences  and  laws  at  home."  We  may  per- 
haps explain  this  as  the  fear  of  the  aristocracy  that  one  of  the 
leading  families  would  try  to  gain  tyrannical  power.  We  see  in 
the  narrative  also  that  the  native  tribes  were  at  one  time  power- 
ful enough  to  fight  with  Carthage  on  equal  terms,  and,  again, 
that  the  city  had  but  recently  begun  its  career  of  conquest 
and  colonial  settlement  outside  of  Africa.  Conquest  did  not 
enter  into  the  purposes  of  the  first  settlers  any  more  than  into 
the  objects  of  Venice  or  of  the  British  East  India  Company 

The  noble  families  and  the  old  firms  of  Tyre  emigrated,  for  tlic  most 
])art,  to  the  secure  and  flomisliiiig  daugiiter  city."  (Mommseii,  Hist, 
of  Rome,  ii.,  19,  Amer.  ed.  of  transl.) 


ARISTOCRACY. 


37 


at  their  origin.  They  were,  however,  naturally  forced  by 
the  competitions  of  trade  to  come  into  collision  with  others 
who  wished  to  break  up  their  monopoly.  This  led  to  the 
wars,  on  the  sea  and  on  the  land,  of  a  state  which  was 
founded  upon  the  industries  of  peace  ;  a  wider  stretch  of 
coast  needed  greater  defences  ;  to  Sardinia  and  ports  of 
Sicily  Spain  was  added,  as  a  province  to  be  defended  and 
monopolized  ;  the  commercial  state  was  by  this  policy  finally 
brought  into  conflict  with  a  military  state,  and  was  con- 
quered. 

It  is  probable  that  the  Phoenician  colonies  in  Africa  were 
.never  thoroughly  incorporated  in  the  Carthaginian  empire ; 
the  relation  which  it  held  towards  the  more  important  of 
them  seems  to  have  been  that  of  a  hegemony,  in  which  they 
had  self-government  with  a  certain  subjection,  the  relation 
which,  for  instance,  the  Bceotian  states  in  Greece  sustained 
towards  Thebes. 

The  oldest  account  of  the  constitution  of  Carthage  is  to 
Aristoiie  on  the  bc  found  in  Aristotlc's  Politics.     Wc  find  here 

consittulion  of  Car* 

'''^s<=-  (as  early  as  322  H.  C,  when  Aristotle  died)  the 

outlines  of  the  same  political  forms  to  which  the  Roman  and 
other  writers  allude,  but  whether  any  changes  may  have 
taken  place  between  that  date  and  the  second  Punic  war 
(218-201  B.  C.)  it  is  impossible  to  determine. 

Aristotle  (Pol.  ii.,  8,  1-9)  regarded  the  polity  of  Car- 
thage as  a  good  one,  superior  in  many  points  to  that  of  other 
states  and  as  in  some  respects  bearing  quite  a  resemblance  to 
the  polity  of  Sparta.  It  belonged,  as  he  thought,  to  the 
class  which  included  the  Cretan  institutions  and  those  of 
Laceda;mon.  A  sign  of  its  excellence  was  that,  though  it 
contained  a  democratic  element,  it  remained  true  to  its  es- 
tablished forms,  without  factions  and  without  a  tyr.uit.  In 
another  place  (viii.,  or  v.,  10,  §  3)  he  refers  to  it  as  an  exam- 
ple of  a  government  passing  from  a  tyranny  into  an  aristoc- 
racy. Here  (unless  the  reading  ought  to  be  Chalccdon  in- 
stead of  Carchcdoii),  we  can  only  guess  that  he  has  in  mind 
the  institution  of  the  hundred  judges  to  check  the  formidable 


38 


POLITICAL  SCIEiXCE. 


power  of  Mago's  family.*  The  first  point  of  resemblance  to 
the  Sparta  polity  which  Aristotle  mentions  is  the  common 
feasts  of  the  political  clubs  {eTaipiwv)  similar  to  the  Spartan 
pliiditia,  of  which  nothing  whatever  is  known  ;  f  the  next  is 
the  board  of  the  hundred  and  four ,  answering  to  the  ephori 
of  the  Lacedaemonians,  which  however  is  to  be  preferred 
to  the  ephorate,  inasmuch  as  the  members  are  chosen  ac- 
cording to  merit,  while  the  latter  are  taken  from  the  ordinary 
citizens.  The  kings  and  senators  arc  much  alike  in  both 
states  ;  but  in  Carthage,  with  greater  wisdom,  it  is  not  re- 
quired that  they  should  belong  to  the  same  family,  and  they 
are  elected  to  their  office.  The  Carthaginian  polity  leans,  he 
goes  on  to  say,  at  one  time  more  to  the  democratic,  at  an- 
other more  to  the  oligarchic  form  ;  and  Polybius  remarks 
(vi.,  51),  that  the  people  had  already  become,  before  the 
great  war  with  the  Romans,  the  chief  power  in  the  state. 
Its  constitution  resembled  those  of  Rome  and  Sparta,  but 
had  already  passed  its  acme.  The  question,  what  affairs 
should  be  brought  before  the  people,  it  was  the  province,  as 
Aristotle  remarks,  for  the  kings  and  the  senate  to  decide  ;  if 
they  agreed,  there  was  no  need  of  referring  the  matter,  but 
otherwise  it  went  down  to  the  people  ;  and  when  thus  sub- 
mitted, the  assembly  was  competent  not  only  to  hear  and 
vote  but  to  debate  on  the  resolutions,  a  power,  says  he,  not 
conceded  to  them  in  the  other  polities  (u.  s.,^3).  He 
speaks  next  of  boards  called  pentarcJiics,  as  having  most  of 
the  important  affairs  in  their  hands  ;  as  filling  their  own  num- 
ber by  cooptation  when  there  is  a  vacancy,  as  choosing  the 
council  of  "  the  hundred,"  and  as  holding  their  office  longer 
than  the  other  boards  ;  but  of  all  this  we  know  nothing  from 

*  In  ii  ,  8,  §  I,  he  asserts  that  Carthage  never  had  a  tyrant.  Coniji. 
B.  St.  I  liiaire's  note  in  liis  transl.  This  scorns  to  i)rove  tliat  Clial- 
cedon,  not  Cartilage,  is  referred  to.  Tlie  same  is  indicated  by  viii., 
or  v.,  10,  §  4,  where  he  calls  it  a  democratic  state. 

f  Livy,  xxxiv.,  69,  speaks  of  a  matter  as  the  subject  of  common 
conversation  "  in  circulis  conviviiscjue,"  but  these  words  can  have  no 
political  sense. 


ARISTOCRACY. 


39 


later  authors.*  Another  aristocratic  characteristic  of  this 
polity  is  that  the  offices  of  government  are  without  salary 
and  not  drawn  by  lot  4),  as  well  as  that  all  cases  at  law  are 
decided  by  the  same  magistrates,  and  not  by  judges  of  differ- 
ent orders. f  In  this  polity  the  tendency  appears  towards 
selections  for  office  according  to  a  man's  wealth  as  well  as  his 
merit.  "  This  is  a  fault  derived  from  the  original  fault  of  the 
legislator,  who  ought  to  have  provided  leisure  for  the  citizens 
of  greatest  merit,  and  to  have  seen  to  it  that  poverty  should 
never  be  disgraceful  for  private  or  public  persons."  Aristotle 
also  blames  that  part  of  the  polity  which  allows  employments, 
even  those  of  a  king  or  of  a  general,  to  be  purchased,  for  "  it 
is  absurd  to  suppose  that,  if  a  poor  but  worthy  man  will  wish 
to  enrich  himself,  a  worse  kind  of  man  will  not  wish  to  pay 
for  his  expenses  in  buying  an  employment."  He  blames 
also  the  Carthaginians  for  allowing  a  person  to  hold  more 
than  one  office  at  the  same  time,  since  one  work  is  best  done 
by  one  man.  The  dangers  of  the  oligarchic  polity  at  Carthage 
are  avoided  by  sending  out  a  part  of  the  people  into  the 
colonies,  and  so  giving  them  an  opportunity  to  acquire  riches. 
"  But  this,"  says  he,  "  is  a  matter  of  chance.  The  lawgiver, 
by  the  polity  itself,  ought  to  prevent  sedition.  But  now,  if 
misfortune  falls  on  the  people,  and  the  lower  class  revolts 
against  the  magistrates,  there  is  no  medicine  provided  by  the 
laws  for  securing  quiet."  (§§  5-9.) 

The  most  important  organ  of  government  at  Carthage  was 
.Senate  ^^^^  scuatc,  from  which  probably  the  "  hundred 
judges  "  ("  ex  numero  scnatorum,"  Justin,  xix., 
2)  are  to  be  distinguished,  who  were  first  created  out  of  jeal- 
ousy of  the  family  of  Mago,  as  has  already  been  mentioned. 
I  accede  to  the  view  of  Hecren  (Ideen,  ii.,  i,  ch.  3),  that 
this  body  is  the  same  with  the  ^cnisia,  which,  in  several  pas- 
sages, is  to  be  distinguished  from  the  senate  properly  so 

♦Corni).  .Scliiicidcr's  note  ii.,  p.  145,  and  HarllK-ioiuy-St.-IIiiairc, 
in  his  translation.  Perhaps  the  "iunulicd"  chose  llic  pcntar- 
chies. 

f  Thii  Aristotle  repeats  in  iii.,  i,  7. 


40 


POLITICAL  SCIENCE. 


called.  Thus,  with  the  army  of  Mago,  commander  at  New 
Carthage  (b.  c.  2og\,  there  were  two  members  of  the  former 
and  fifteen  of  the  latter,*  taken  prisoners.  (Polyb.,  x.,  i8.) 
Again,  Li\y,  in  mentioning  that  a  deputation  of  thirty  princi- 
pal sen  lores  was  sent  to  the  Romans  to  sue  for  peace, 
says,  "id  erat  sanctius  apud  illos  consilium,  maxinia- 
que  ad  ipsum  senatum  regendum  vis"  (xxx.,  i6).  Here 
a  board  is  described  which  could  send  to  Rome,  in  order  to 
sue  for  peace,  thirty  of  its  principal  members  (triginta  seni- 
orum  principes),  and  which  controlled  the  senate  itself.  It 
is  called  a  cotisiliuin,  so  that  either  the  whole  thirty  com- 
posed the  council,  or  it  was  a  deputation  from  a  council  differ- 
ing from  the  senate  itself.  Mommsen  thinks  these  seniores 
to  be  the  gerusia,  composed  of  twenty-eight  annually  elected 
members  and  the  two  kings.  It  is  doubtful,  he  says,  whether 
along  with  this  small  council  there  existed  a  larger  one,  at 
any  rate  it  was  not  of  much  importance.  (Book  iii.,  ch.  i.) 
Such  different  results  do  modern  scholars  reach,  when  they 
fill  out  the  scanty  reports  of  the  ancients. 

We  have  then  cither  two  or  three  councils  or  boards,  one 
created  for  a  particular  purpose  and  consisting  of  a  hundred 
members,  originally  a  detachment  of  a  senate  ;  that  senate 
itself,  and  an  inner,  more  private  body,  whose  conclusions 
generally  governed  those  of  the  senate  itself.  The  institution 
of  the  Jiidices"  and  of  the  gcrtisia  may  have  been  subse- 
quent to  the  existence  of  the  senate,  and  shows  the  desire  to 
control  affairs  by  some  authority  on  which  the  aristocracy 
could  more  rely.  The  judges  were  created  to  call  the  mili- 
tary officers,  with  perhaps  the  other  magistrates  and  public 
servants,  to  account,  and  had  criminal  jurisdiction  over  them. 
The  gerusia  had  the  origination  of  drafts  of  laws,  it  is  proba- 
ble, and  the  principal  voice  in  all  administrative  measures. 
As  wc  have  seen,  when  the  senate  and  the  chief  magistrates 
were  agreed  in  their  policy,  the  people  decided  without 
debate. 


*  Called  syncletus  or  senate. 


ARISTOCRACY. 


41 


The  name  by  which  the  chief  magistrates  were  known  was 
that  o{  stiff etcs  or  snfctes,  from  the  Semitic  root 
shaphat,  to  judge,  the  participle  of  which,  Sho- 
phet,  in  the  Hebrew  scriptures,  denotes  those  officers,  ordina- 
rily called  judges,  who  were  appointed,  like  the  dictators  of 
Rome  and  the  tagi  of  Thessaly,  on  extraordinary  occasions, 
especially  when  war  was  impending  ;  and  who  both  com- 
manded in  war  and  dispensed  justice  in  peace  for  their  life- 
time. These  suffetes  are  described  as  kings,  and  prastors, 
are  compared  with  the  Roman  consuls  (^Livy,  x.x.x.,  7,  5),  and 
are  expressly  asserted  to  be  annual  magistrates.  (C.  Nepos, 
Hannibal,  <^  7.)  They  had  judicial  power  (Livy,  xxxiv.,  61), 
a  seat  probably  in  the  council,  some  share  in  the  administra- 
tion, and  were  annually  elected  to  their  office  from  the  prin- 
cipal families.  They  could  unite  with  this  office  that  of 
judge.  They  were  conceived  of  by  Aristotle  as  having 
greater  authority  than  belongs  to  them  in  the  subsequent 
history  of  Carthage.  They  were  not  peculiar  to  Carthage  ; 
we  know  that  Gades  had  supreme  magistrates  with  the  same 
name,  so  that  it  is  not  improbable  that  the  Phoenician  colo- 
nies all  had  two  men  at  the  head  of  affairs,  who  were  not 
called  kings,  like  chief  officers  of  state  in  the  mother  country, 
but  judges  to  show  their  dependence  on  the  home-govern- 
ment. Perhaps  at  first  they  were  generals  and  judges  alike. 
This  is  all  that  is  known,  or  may  be  rationally  conjectured, 
concerning  the  Carthaginian  polity.  Of  the  clubs  and  the 
pentarchies  there  is  only  the  barest  mention,  as  we  have 
seen  already.  That  offices  could  be  purchased,  as  Aristotle 
tells  us  (u.  s. ,  ii.,  8,  §  6),  is  strange  in  an  antique  state,  but 
not  so  strange  in  an  aristocratic  one  ;  he  can  hardly  intend 
only  that  the  people  were  open  to  corrupting  influences,  that 
a  wealthy  man  by  spending  money  enough  could  secure  to 
himself  the  election  to  the  office  of  king  or  general. 

Carthage  and  Venice  (which  we  are  next  to  consider)  offer 
more  analogies  than  any  other  two  aristocratic  states,  but  as 
we  know  much  less  of  the  ancient  tiian  of  tlie  modern  com- 
mercial republic,  its  earlier  condition  must  be  negleded  in  the 


42 


POLITICAL  SCIENCE. 


comparison.  The  aristocratic  qualities  of  Carthage  are  obvi- 
ous from  what  has  been  said,  and  its  place  is  among  those 
republics,  all  whose  institutions  are  intended  for  peace,  but 
which  betake  themselves  to  war  in  order  to  secure  commer- 
cial advantages.  For  the  purposes  of  war  they  find  it  neces- 
sary to  employ  mercenary  troops.  \'enice  and  Carthage 
were  equally  forced  into  this  ;  Nuniidians  and  Iberians  com.- 
posed  the  armies  of  this  republic,  much  as  the  soldiers  gath- 
ered by  condottieri  composed  those  of  Venice.  Bomilcar 
made  his  mad  attempt  to  become  a  tyrant  in  Carthage  with 
the  help  of  mercenaries  in  the  time  of  Agathocles,  and  at  the 
end  of  the  peace  of  241  B.C.  (=  513  U.  C.)  w^ith  the  Romans 
a  most  formidable  war,  threatening  the  very  existence  of 
Carthage,  broke  out  against  the  hired  troops  and  the  Africans 
who  made  common  cause  with  them.  (Polyb.,  i.,  65  onw.) 
The  democracy  neither  at  Carthage  nor  at  Venice  had  great 
strength  or  power  of  combination.     Yet  the 

People.  .     .  ^  . 

principal  leaders  in  the  wars  with  Rome,  the 

war  party,  had  the  people  as  their  support,  while  the  peace 

or  oligarchic  party  was  strong  in  the  council  of  one  hundred 

and  the  senate. 

We  may  add  that  Aristotle  seems  to  have  estimated  too 
highly  the  constitution  of  Carthage.  But  its  faults,  and  the 
faults  of  a  commercial  aristocracy,  such  as  it  was,  become 
apparent  from  the  events  of  the  century  after  that  great 
philosopher's  death. 

Carthage,  being  a  mercantile  aristocracy,  had  the  jealousies 
which  rivals  in  trade  call  forth.  The  other  Phenician  colonics 
came  under  its  control,  or  stood  in  the  relation  of  allies  whose 
friendship  could  not  be  trusted.  Thus,  Utica  seems  to  have 
always  been  jealous  or  hostile  toward  the  more  powerful 
state,  and  Gades  was  willing  to  desert  the  Carthaginian  cause 
by  making  peace  with  Rome.  The  foreign  possessions  of 
Carthage,  besides  those  in  Spain,  and  along  the  African  coast, 
lay  on  the  islands  of  Sardinia  and  Corsica  ;  the  Balearic  isl- 
ands came  under  its  jurisdiction,  and  it  long  contended  with 
the  Greeks  for  the  dominion  of  Sicily.  . 


THE  CONSTITUTION  OF  VENICE. 


43 


THE  CONSTITUTION  OF  VENICE. 
§  182. 

Among  all  modern  constitutions  that  of  Venice  offers  us  the 
Character  of  the  "^^^^  noticcablc  cxamplc  of  a  close  and  jealous 
constitution.  aristocracy,  gaining  its  power  by  degrees,  im- 
posing checks  on  the  government  of  the  duke  or  doge  lest  he 
should  found  a  line  of  hereditary  princes,  or  become  a  leader 
of  a  democracy,  and  reducing  the  people  in  whose  hands  the 
original  power  of  the  state  lay  to  almost  complete  insignifi- 
cance. This  aristocracy  was  created  by  commerce,  although 
it  would  appear  that  in  early  times  a  germ  of  old  families  was 
transplanted  from  the  main  land,  during  the  invasions  that 
then  desolated  Italy.  It  placed  itself  at  the  head  of  affairs 
and  managed  them  with  singular  ability,  and  with  a  practical 
skill,  such  as  might  proceed  from  the  counting-house  and  the 
experience  of  men  acquainted  with  various  lands.  This  is 
worthy  of  especial  mention,  that  the  policy  of  the  state 
changed  as  that  of  a  merchant  would,  whose  sources  of  pros- 
perity in  one  branch  of  his  business  were  cut  off.  He  puts 
his  capital  in  another  shape,  tries  new  modes  of  traffic,  places 
obstacles  in  the  way  of  competitors,  and  bends  all  his  energies 
to  the  recovery  of  his  former  success.  The  infant  colony 
consisted  of  Italians,  but  the  influences  that  told  on  it  were, 
for  the  most  part,  not  Italian.  Within  the  jurisdiction  of  the 
exarch  of  Ravenna,  under  the  eastern  empire,  secluded  in  po- 
sition from  the  revolutions  of  Italy,  these  merchants,  driving 
their  trade  on  islands  which  served  as  walled  fortresses  against 
the  continent,  cared  little  for  Lombards,  I-Vanks,  or  German 
emperors.  In  their  religion  they  were  more  independent 
than  any  of  the  pope's  Italian  subjects.  In  trade  they  looked 
eastward  towards  Dalmatia,  where  they  soon  became  predom- 
inant, towards  various  parts  of  the  Levant,  even  towards 
^'Sypt  other  Mohammedan  states.  When  the  crusades 
broke  out  they  perceived  the  commercial  advantages  likely  to 


44 


POLITICAL  SCIENCE. 


accrue  to  themselves,  and  were  the  principal  carriers,  as  the 
Florentines  were  the  principal  money-lenders  of  the  expedi- 
tions. When  the  Byzantine  empire  was  disintegrated,  and  Con- 
stantinople was  in  Frank  hands,  they  played  a  principal  part 
and  had  the  main  advantage.  Greece  was  open  to  them  and 
in  part  became  theirs,  Candia  was  a  dependency  governed  in 
the  interest  of  the  republic  by  men  from  its  leading  families. 
When,  again,  the  Greeks  recovered  Constantinople,  when  a 
rival  city  took  away  much  of  the  commerce  on  the  Black 
Sea,  and  occupied  the  routes  from  the  East,  Venice  found  new 
avenues  to  wealth.  And,  especially,  when  the  Turks  moved 
westward,  and  threatened  to  overthrow  their  power  in  the 
Levant,  they  felt  it  necessary  to  adopt  a  new  system.  Terri- 
tory must  be  secured  on  the  main  land,  and  thus  they  must 
mingle  on  a  greater  scale  than  before  in  the  politics  of  Italy 
and  of  Europe.  Thus  Venice  became  at  one  time  the  leading 
state  of  Northern  Italy.  But  the  great  kingdoms  of  Europe 
were  too  great  for  the  small  republic  to  stand  by  their  side  as 
an  equal ;  the  discovery  of  the  passage  round  the  Cape  of 
Good  Hope  sent  part  of  her  trade  into  another  channel  ;  and 
while  Spain,  Holland,  and  England  enlarged  their  intercourse 
with  remote  parts  of  the  world,  Venice  fell  off  in  her  com- 
merce, lost  her  power  without  losing  her  standing  and  pres- 
tige, until,  in  1797,  the  grand  council  gave  up  her  independ- 
ence, and  she  became  a  part  of  the  Austrian  empire. 

The  leading  steps  in  the  political  course  of  Venice  were 
these  :  First,  the  infant  settlements  appear  as 

E.Trly  Venice.  ,. 

part  of  the  exarchate,  and  the  inhabitants  live 
chiefly  on  the  islands  which  form  the  lagoons  of  Venice, 
Torcello,  Malamocco,  Chioggia,  or  further  northward  in 
Equilium,  Caprolje  (Caorlc),  Heraclea,  and  Olivola.  These 
places,  with  the  exception  of  Heraclea,  were,  for  a  time,  at 
least,  episcopal  sees  under  the  jurisdiction  of  the  archbishop 
of  Grado,*  an  island  lying  off  Aquilcia,  where,  after  the  schism 

*  Comji.  Wiltsch,  Kirclil.  Ocogr.,  i.,  179,  ii.,  169.  In  the  second 
passage  no  bishoi)ric  of  Malamocco  is  si)okeii  of. 


THE  CONSTITUTION  OF  VENICE. 


45 


in  the  seventh  century,  a  rival  of  the  patriarch  of  Aquileia  had 
his- seat.  The  first  was  acknowledged  by  the  Romans,  the 
latter  by  the  Lombards.  The  see  of  Grado  was  transferred  to 
Venice  in  the  fifteenth  century,  but  long  ere  this  the  archbishop 
chiefly  resided  and  was  forced  by  the  Venetians  to  reside  at 
Rivoaltum  or  Rialto.  This  island,  the  present  city  of  Venice, 
was  not  settled  until  after  Torcello  and  other  islands,  but  if 
the  doge  Agnellus  Participatius  (811-827)  made  it  his  resi- 
dence, it  must  at  that  time  have  been  somewhat  thickly  in- 
habited. 

2.  The  first  magistrates  in  the  islands  were  tribunes,  who, 
according  to  the  gradations  in  military  rank  customary  in 
Italy  during  the  times  just  before  the  Lombard  invasion,  were 
under  a  viagister  militum.  These  tribunes  seem  to  have 
been  civil  as  well  as  military  officers,  and  had  no  connection 
with  one  another.  The  inagister  militum,  who  was  over 
them,  depended  on  the  exarch.  Tlie  early  relations,  then, 
of  these  new  settlements,  were  with  the  eastern  empire  ;  but 
the  religious  dissensions  between  the  eastern  and  western 
churches,  more  especially  the  iconoclastic  controversy,  which 
broke  out  under  Leo,  the  Isaurian  (717-741),  alienated  them, 
as  they  did  Rome,  from  the  empire  of  Byzantium.  The  ex- 
archs left  them  to  themselves,  such  was  the  weak  hold  of  the 
empire  in  Italy  ;  and  thus  they  freely  developed  their  institu- 
tions, without,  however,  casting  off  their  allegiance.  Indeed, 
to  have  done  this  might  have  been  highly  injurious  to  the 
important  commerce  which  they  had  begun  to  carry  on  w  ith 
Istria,  Dalmatia,  and  other  parts  of  the  eastern  empire.  In 
697,  not  without  the  concurrence  and  advice  of  the  archbishop 
of  Grado,  they  chose  their  first  duke,  which  seems  to  have 
been  no  act  of  revolt,  since  we  hear  of  no  hostilities  growing 
out  of  it.  It  was  intended,  without  doubt,  as  a  help  towards 
greater  political  unity,  and  was  the  effect,  rather  than  the 
cause,  of  their  substantial  independence.  As  for  the  classes 
of  persons  who  were  thus  united  together,  it  is  probable  that, 
besides  the  original  fishermen  and  the  persons  engaged  in 
commerce,  there  were  at  an  early  date  on  the  islands  fami- 


46 


POLITICAL  SCIENCE. 


lies  from  the  main  land  of  a  superior  class.  A  Venetian 
chronicler  informs  us  that  magnates  and  procercs  from  Aquil- 
eia  settled  in  Rivolatum,  of  whom  he  gives  a  list  amounting 
to  fifty-three.*  Three  dukes  reigned  from  697  to  737,  of 
whom  the  third  was  killed  in  a  tumult  (or  civil  war,  as  the 
chronicler  calls  it),  in  whose  place  was  elected,  as  an  annual 
magistrate,  a  magister  militum.  The  choice  of  a  magistrate 
with  this  name  was  not  strange,  for,  as  Heinrich  Leo  (Gesch. 
Ital.,  i.,  247)  expresses  himself,  "  in  the  regions  of  Ravenna 
and  the  Pentapolis  inagistri  viilitum  are  spoken  of  as  the 
highest  political  magistrates,  and  that,  interchangeably  with 
duces.  Perhaps  the  choice  of  a  new  dux  was  hindered  by  the 
strife  of  factions  only,  and  the  magister  militum  in  Venetia  is 
put  forward,  no  doubt,  as  the  commander  of  the  scholce  mili- 
tum, or  military  companies,  because  the  higher  office  ••vas  not 
yet  filled."  Officers  with  this  title  were  at  the  head  of  affairs 
for  five  years,  and  then  the  son  of  the  slain  duke,  who  was 
elected  to  fill  the  same  office,  was  blinded  and  banished. f 
It  is  recorded  of  the  ne.xt  duke  but  one,  Dominicus  Monega- 
rius,  that  two  tribunes  were  associated  with  him  as  counsel- 
lors, in  which  we  discern  that  suspicion  of  the  doge  which 
appears  so  prominently  in  later  Venetian  history. 

From  the  year  811,  for  more  than  two  centuries  members 
of  three  families  furnished  Venice  for  the  most  part  with  its 
chief  magistrates.  This  shows  a  certain  tendency  towards 
making  this  life  long  office  hereditary,  or  at  least  that  the 
doges  found  it  not  difficult  to  secure  the  office  during  their 
life-time  for  one  of  their  relatives.  In  the  eighth  century 
Venice  carried  on  a  commerce  with  the  Saracens  of  Africa  in 
Christian  slaves,  which  Pope  Zachary  (732-751)  forbade  ;  and 

*  Andrea  Dandolo,  doge  in  1343,  in  Muratori,  Rcr.  Ital.  Scriptorcs, 

f  Dandolo  (Afur.,  xii.,  156)  mentions  that  the  town  of  Heraclea, 
from  which  tlie  exiled  dukes  originated,  was  destroyed  by  tiie  Vene- 
tians, ahhough  some,  says  he,  ascribe  the  act  to  I'epin,  king  of 
France.  Pepin  was  in  Italy  about  754,  just  before  the  duke  Deus- 
dedit  or  Diodato  was  deposed.  May  not  the  presence  of  the  Fianks 
in  Italy  iuive  had  sometiiing  to  do  with  these  Iruubles  ? 


THE  CONSTITUTION  OF  VENICE. 


47 


the  connection  with  Egypt  is  shown  in  the  next  century  (827) 
by  the  transportation  of  the  reliques  of  St.  Mark  from  Alex- 
andria. This  was  under  the  duke  Agnellus  Participatius,  the 
same  who  made  Rivoaltum  the  ducal  residence.  The  sedi- 
tions and  violence  against  the  dukes  continued  through  the 
ninth  and  tenth  centuries.  Peter  Candianus,  who  entered  on 
his  office  in  942 — the  third  duke  of  this  family,  one  of  the 
richest  and  most  magnificent  men  of  his  time — is  said  to  have 
endeavored  to  make  the  dukedom  hereditary  in  his  family. 
For  this  a  faction  attacked  him  in  the  palace,  and  when  they 
could  not  get  possession,  set  it  on  fire  ;  it  was  consumed  with 
other  buildings,  and  the  duke  in  attempting  to  escape  was 
murdered.  A  document  of  this  time  mentions  the  loss  of 
state-records,  and  thus  throws  suspicion  on  the  exactness  of 
Venetian  history  prior  to  this  date. 

Three  dukes  of  the  Urseoli  family  had  reigned  in  succes- 
sion from  991  to  1026,  when  the  jealousy  of  the  Venetians 
caused  the  banishment  of  Otto  Urseolus  and  his  brother, 
the  archbishop  of  Grado.  The  family,  however,  was  still 
powerful,  and  another  member  of  it,  Dominicus,  tried  to 
continue  the  family  in  the  office.  But  an  opposite  party  suc- 
ceeded in  choosing  their  candidate,  many  of  the  Urseoli  were 
obliged  to  leave  the  state,  and  a  law  was  passed  that  no  duke 
should  associate  with  himself  another  person  as  condii.r,  i.  c, 
cu-duke.*  This  had  been  the  means  by  which  it  had  been 
possible  to  transmit  the  office  to  another  member  of  the  same 
family.  Henceforth  the  duke's  power  was  to  be  limited  b>- 
means  of  two  annually  elected  counsellors  associated  with 
him.  From  this  time  for  more  than  four  hundred  years,  in 
no  instance,  we  believe,  did  the  same  family  furnish  two 
dukes  to  the  republic  in  succession. 

We  may  stop  at  this  point  where  the  doge  begins  to  appear 
in  his  more  modern  form  and  the  constitution  is  passing  over, 
from  one  in  which  the  people  have  a  direct  share,  to  one  in 

*  Dandolo  (.Mur.  11.  s.)  says,  his  diebus  reperitiir  statutuin  ut  dux 
creandiis  consortcin  vcl  succcssorciu  non  faciat,  nec  fieri  pcrinittat 
eo  viventc. 


48 


POLITICAL  SCIENCE. 


which  their  assent  begins  to  be  nominal  ;  something  as  it 
was  in  the  election  of  bishops  a  few  centuries  after  the 
Christian  church  was  founded.  We  will  consider  first  the 
constitution,  as  it  related  to  the  election  of  the  doee,  his 
power  and  the  limitations  placed  upon  it,  then  the  great 
council  and  then  the  smaller  councils  of  various  kinds. 

I.  The  doge.    There  can  be  little  doubt,  I  think,  that  at 
the  first  all  the  people  cast  their  vote  for  this 

The  doge.  '■ 

officer,  and  that  only  afterward  the  great  coun- 
cil began  to  exercise  an  important  control  over  elections. 
The  subsequent  custom  of  calling  the  people  together  to  an- 
nounce to  them  the  election,  as  well  as  the  stormy  scenes  at 
the  election  of  early  doges,  shows  this.  As  late  as  when  old 
Henry  Dandolo  was  made  doge  (1192),  and  another  manner 
of  election  was  in  use,  the  newly  appointed  council  sum- 
moned the  inhabitants  of  the  territory  from  "  caput  Ag-g-cris" 
(Cavarzere)  to  the  island  of  Grado,  pro  clectione  diicis  so- 
lemnitcr  cclebrando.  The  council  being  assembled  after  the 
usual  fashion,  forty  electors  were  appointed  by  them,  who, 
having  chosen  the  doge  on  the  first  day  of  January,  announced 
him  to  the  people.  Here  all  the  people  had  to  do  was  to 
hear  the  result  of  the  election. 

When  the  people  ceased  to  have  any  effective  voice,  and 
when  the  council  became  in  fact  the  electing  body,  I  cannot 
ascertain.  Domcnicus  Sylvus,  or  Sylvius,  in  107 1  was  crea- 
ted duke,  according  to  Andrea  Dandolo,  by  all  the  people 
{cuiicto  popiild)  ;  Domenico  Michele  is  said  by  him  to  have 
been  created  and  nothing  further  is  added  (1117).  Pietro 
Polano  (11 80)  is  appointed  by  tJie  great  council.  Sebastiano 
Ziani  was  chosen  (i  173)  by  eleven  sworn  men  whose  names,  as 
given  by  Dandolo,  show  them  to  have  belonged  to  well- 
known  noble  families.  This  doge  had  feeble  health,  and 
during  his  lifetime,  the  same  chronicler  tells  us,  a  law  was 
passed  to  the  effect  that  four  men  should  choose  forty;  by  the 
majority  of  whom  the  next  doge  (who  was  Orio  Mastropctro) 
should  be  elected.  In  1229  the  electors  were  divided  into 
two  equal  parts,  and  the  lot  was  used  to  decide  between  the 


THE  CONSTITUTION  OF  VENICE. 


49 


persons  chosen  by  the  parties.  In  1249,  to  avoid  this  diffi- 
culty one  was  added,  making  the  number  one  and  forty.* 
"As  these  forty-one  electors,  the  councils  and  the  people, 
were  assembled  for  a  new  election,  in  1249,  the  gastaldio 
Daniel  swore  with  the  assent  of  the  people,  and  in  their  name, 
that  they  would  accept  the  doge  chosen  in  the  way  pre- 
scribed." f  The  forty-one  continued  as  the  electors  of  the 
doge  for  a  long  time,  and  Dandolo  gives  their  names  when- 
ever a  new  doge  is  chosen. 

In  the  year  1268,  when  Lorenzo  Tiepolo  was  made  doge, 
particular  regulations  for  choosing  the  doge  were  adopted, 
which,  with  little  change,  continued  always  afterward.  The 
members  of  the  great  council  who  were  over  thirty  years 
old  drew  from  a  bag  balls  partly  gilded  and  the  rest  plated. 
The  thirty  who  drew  the  gilded  balls,  again  cast  the  lot  for 
nine  of  their  number,  whose  business  it  was  to  be  to  appoint 
forty  men  of  different  families,  seven  of  the  nine  voices 
being  needed  for  a  choice.  These  forty  drew  lots  for  twelve 
of  their  number,  and  these  twelve  chose  twenty-five,  of  whom 
each  needed  to  have  nine  votes  for  his  election.  The  five  and 
twenty  cast  lots  for  nine  ;  the  nine  chose  forty-five,  each  of 
Avhom  needed  seven  voices  for  his  election.  This  body  of 
five  and  forty,  after  an  oath  to  make  a  choice  according  to 
their  consciences,  threw  the  names  of  the  persons  whom  they 
wished  for  doge  into  a  vessel.  If  the  votes  were  scattering, 
they  repeated  the  process  until  twenty-five  were  given  for 
one  person,  who  was  then  declared  elected.  This  was  after- 
wards altered,  and  the  names  were  balloted  for,  until  a 
majority  had  agreed  upon  any  one  man.  These  successive 
attempts  to  eliminate  all  private  agreements,  and  to  get  an 
impartial  vote  for  a  competent  person  by  a  combination  of 

*  Coinp.  F.  Von  Rauiner's  Gesch.  d.  I  lolicnstaiiffen,  v.  3;/i.  The 
sketch  of  the  Venetian  constitution  given  by  this  eminent  liistorian, 
and  II.  Leo's  notices  in  several  of  the  volumes  of  his  Clescli.  Itali- 
ens,  have  been  of  much  use  to  nic. 

t  Von  Raumer,  u.  s.    This  fact  is  taken  from  the  margin  of  the 
Cod.  Ambros.,  in  Miiratori,  u.  s.,  xii.,  377. 
VOL.  II.— 4 


50 


POLITICAL  SCIENCE. 


the  lot  and  the  ballot,  show  the  jealousy  which  the  mem- 
bers of  the  council  entertained  toward  one  another,  espe- 
cially toward  the  relatives  of  the  deceased  doge  ;  but  such 
complicated  votes  were  not  confined  to.  the  Venetian  re- 
public* 

The  doge's  power  was  limited  by  the  grand  council,  by 
his  own  special  council,  by  the  quarantia,  afterwards  by 
the  power  of  the  ten,  and  by  special  laws.  Although  chief 
magistrate,  he  could  do  very  little  on  his  own  authority.  He 
could  not  leave  the  republic  without  permission  obtained 
from  the  two  councils.  He  could  appoint  no  relative  of  his 
own  to  a  civil  or  ecclesiastical  office.  He  could  marry  no 
foreign  woman,  lest  the  state  might  be  brought  into  unpleas- 
ant foreign  relations.  He  could  give  audience  alone  to  no 
foreign  ambassador,  nor  receive  an  ambasssy  from  foreign 
parts. t  His  executive  power  was  rather  a  semblance  than  a 
reality  ivitliiu  the  limits  of  his  official  duties  ;  for  he  was 
surrounded  by  so  many  councils  created  by  the  aristocracy, 
that  little  means  of  doing  good  or  evil  to  the  state  were  left 
to  him. 

2.  The  great  council,  especially  after  it  became  a  close 
corporation,  was  the  controlling  body  in  the 

The  grand  council.  . 

State,  as  reprcsentmg  first  the  community,  then 
the  wealth  over  against  the  people,  then  the  upper  aristocracy 
over  against  the  new  wealth.  We  have  already  spoken  of 
the  sources  from  which  the  aristocracy  was  derived.  They 
were — to  enumerate  them  more  accurately — the  families  made 
rich  in  early  times  by  navigation  and  commerce  ;  the  patrician 
families  or  town  gentry  who  fled  to  Venice  as  a  refuge  in 
early  times  ;  the  new-comers  afterward,  like  the  more  than 
fifty  magnates  from  the  territory  of  Aquilcia,  and  the  nineteen 

*  The  account  given  by  Dandolo  differs  from  this  in  some  particu- 
lars— he  says  notliing  of  gilded  and  plated  balls,  for  instance- — but  is 
substantially  the  same. 

f  In  Muratori's  chronicle  of  A.  Daiulolo,  a  law  is  mentioned  in 
regard  to  the  doge's  authority  to  receive  ambassadors,  passed  under 
Rainerio  Zeno,  xii.,  372. 


THE  CONSTITUTION  OF  VENICE. 


51 


Greeks,  who,  in  the  middle  of  the  twelfth  century  *  were 
admitted  into  the  grand  council ;  together  with  Venetians,  or 
foreigners,  occasionally,  ennobled  and  made  eligible  to  the 
highest  privileges  in  the  state  in  the  course  of  time.  Thus, 
when  Rainerio  Zeno  was  doge  (1252-1268),  ten  populares 
obtained  the  right  of  sitting  in  the  grand  council  on  account 
of  special  services  to  the  state.  (Mur. ,  xii.,  372.)  What  the 
definition  of  nobility  and  aristocracy  was  at  Venice  in  the 
earlier  times,  it  is  hard  to  say.  The  nobles  had  coats  of 
arms,  and  many  of  them  had  filled  important  offices,  or  were 
descended  from  the  principal  men  of  the  republic.  But  there 
seems  to  have  been  no  exact  line  between  them  and  the 
upper  class  of  citizens  until  the  "  closing  of  the  council,"  in 
1297,  after  which  to  belong  to  families  entitled  to  sit  there 
was  a  patent  of  nobility. 

There  must  have  been  a  council  with  numerous  members 
at  Venice  from  early  times,  if  we  may  argue  from  the  analogy 
of  most  small  republics.  The  first  mention  of  such  a  council 
in  the  chronicle  of  Dandolo  is  where  he  speaks  of  events  of 
the  twelfth  century.  The  grand  council,  as  then  constituted, 
was  chosen  by  twelve  persons,  who  themselves  were  selected 
by  the  people,  one  from  each  of  the  six  districts  where  the 
community  then  resided.  Each  chose  forty  from  his  district, 
who  sat  for  a  year  and  began  their  sessions  on  the  first  of 
September,  but  could  be  re-elected.  Afterwards,  instead 
of  twelve  electors  four  seem  to  have  had  this  duty  assigned 
to  them  ;  but  now  they  were  members  of  the  council  them- 
selves, and  held  their  office  for  years  together.  For  some 
time,  the  council. was  open  to  any  Venetian  of  standing  suffi- 
cient to  secure  his  election.  The  only  limitation  upon  the 
free  action  of  the  electors  was  that  none  of  them  should 
choose  into  the  council  more  than  four  of  his  kinsmen. 

The  century  or  century  and  a  half  which  followed  the  cap- 
ture of  Constantinople  (1205  onward),  was  as  important  a 
period  for  the  development  of  the  constitution  of  Venice  as 

*  When  Domenico  Mauroccno  was  doge  (1148),  A.  Dandolo, 
(Mur.,  xii.,  294.) 


52 


POLITICAL  SCIENCE. 


for  the  expansion  of  its  power  in  the  east.  The  events  of 
this  epoch  seem  to  have  increased  the  separation  between 
the  nobles  and  the  people  ;  as  was  natural  when  such  new  and 
copious  sources  of  wealth  and  such  knovvledge  of  the  world 
was  open  to  the  upper  classes.  In  the  dukedom  of  Peter 
Gradenigo  (1289-13 ll)  occurred  the  change  in  the  constitu- 
tion of  the  grand  council,  to  which  we  have  already  referred, 
and  which  is  known  as  "  il  serrar  del  grande  consiglio."  The 
object  of  this  measure  was  to  restrict  admission  into  that 
body  to  a  certain  number  of  families,  who  thus  would  com- 
pose an  aristocracy  within  an  aristocracy.  These  privileged 
families  were  such  as  had  supplied  members  to  the  council 
within  four  years.  The  names  of  the  families  were  inscribed 
in  the  "golden  book,"  and  at  that  time  or  afterwards  all 
members  of  such  families,  on  reaching  the  age  of  twenty-five, 
had  admission  into  it.  Thus  it  was  at  last  a  close  body,  of 
the  same  kind  substantially  with  the  English  house  of  lords, 
without  being  confined  to  the  oldest  sons  of  the  nobles,  and 
to  a  certain  extent  resembled  the  Roman  senate,  since  a  large 
part  of  its  members  must  have  had  experience  in  public  life 
through  the  busiest  centuries  of  Venetian  history. 

The  law  of  1298  for  the  new  constitution  of  the  council  is 
given  as  follows  :  "  The  forty  (the  quarantia)  are  to  ballot  as 
to  all  those  who  have  been  members  of  the  great  council 
within  the  last  four  years,  and  every  one  who  receives  at 
least  twelve  votes  out  of  thirty  will  be  a  member  for  the 
next  year.  So  also  is  the  ballot  to  be  taken  in  regard  to 
the  places  of  those  who  are  in  office  or  accidentally  absent." 

Further,  "  three  men,  nominated  for  this. purpose,  can  pro- 
pose persons  as  members  of  the  council  who  have  not  sat 
there  hitherto,  and  these  have  admission,  provided  twelve 
votes  as  above  are  cast  for  them.  By  this  however  it  is  not 
to  be  understood  that  those  can  be  admitted  into  the  great 
council,  who  by  the  usual  resolutions  are  excluded  from  it." 

To  these  acts  may  be  annexed  a  part  of  a  law  proposed  by 
the  doge  Gradenigo  in  1297,  through  Leonardo  15cmbo  and 
Marco  Badoario,  hcadsof  the  quarantia,  and  confirmed  by  the 


THE  COXSTITUTION  OF  VENICE. 


53 


council,  that  "  in  future  no  more  elections  are  to  be  held,  but 
that  those  who  during  the  last  four  years  were  members  of  the 
council  shall  continue  to  be  members  of  it,  they  and  their 
children."  This  law  was  not  to  be  abrogated  unless  five 
members  of  the  signoria,  twenty-five  of  the  quarantia  and 
two- thirds  of  the  great  council  itself  were  against  it. 

The  grand  council  was  the  proper  deliberative  and  law- 
making assembly  of  the  republic,  but  it  had  sundry  appoint- 
ments also  in  its  hands.  Mr.  Rawdon  Brown,  who  has 
searched  the  archives  of  Venice  in  quest  of  documents  relat- 
ing to  English  affairs,  thus  speaks  of  the  efficiency  of  the 
great  council  at  different  times.*  "  Throughout  the  whole 
of  the  republic  the  grand  council  continued  to  act,  though 
with  various  degrees  of  power,  and  to  register  its  proceedings. 
Overridden  by  the  doge  and  his  minor  council  in  early  times, 
it  seems  in  the  middle  of  the  thirteenth  century  to  have  re- 
gained a  portion  of  its  influence,  or  at  all  events  to  have 
exercised  a  great  amount  of  activity.  We  find  that  in  1255 
it  authorizes  the  doge,  who  probably  was  a  sportsman,  to 
grant  permits  for  the  exportation  of  hawks  and  hounds  duty 
free.  In  April,  1281,  it  forbids  surgeons  to  practice,  until 
sworn  before  justices.  In  1293,  it  prescribes  the  amuse- 
ments of  the  citizens,  prohibiting  all  games  but  chess  and 
backgammon  ;  and  at  the  close  of  the  following  century, 
from  1393  to  1395,  it  regulates  the  paving  and  lighting  of  the 
town,  and  even  interferes  with  the  winding  up  of  the  parish 
clock  at  Rialto.  But  over-meddling  is  fatal  to  the  influence 
of  a  numerous  legislative  assembly,  and  already,  at  the  com- 
mencement of  the  fourteenth  century,  had  its  power  passed 
over  to  the  senate  ;  nevertheless  to  the  last  the  grand  coun- 
cil exercised  considerable  patronage,  and  was  in  theory  the 
sovereign  body." 

In  the  note  extracted  by  Muratori  (xii.,  361)  from  the 
margin  of  a  MS.  of  Dandolo's  chronicle,  the  offices  of  the 
grand  council  are  thus  described.    "  They  elected  magistrates 

•  Preface  to  his  Calendar  of  State-papers  and  Manuscripts  relating 
to  Knj^lish  affairs,  etc.,  pp.  xii.,  .xiii. 


54 


POLITICAL  SCIENCE. 


and  were  then  called  consilium  de  clcciioiiibiis,  thcj'  judged 
important  cases,  both  civil  and  criminal,  and  they  managed 
public  affairs."  This  refers  to  the  middle  of  the  twelfth 
century. 

There  are  statements  which,  if  we  can  place  reliance  on 
them,  show  that  before  the  law  of  1297  passed  by  the  grand 
council  itself,  the  old  constitution  of  the  body  had  become 
obsolete,  or  changes  had  been  made  which  are  not  recorded. 
Thus  the  received  statement  as  to  the  number  of  480,  be- 
yond which  the  council  could  not  go,  is  contradicted  by 
another  that  in  the  years  1267,  1269,  1275,  it  consisted  of 
502,  501,  567  respectively.  And  instead  of  the  limitation  of 
members  of  one  house  or  kindred  to  four,  in  1261  eight 
Badoarii,  eleven  Falierii,  fifteen  Morosini,  nineteen  Dandoli, 
as  many  Quirini,  twenty  Contarini  belonged  to  the  council 
at  once,  and  the  numbers  vary  in  different  years  in  the  four- 
teenth century  from  1047(1311)  to  897  (^1350).  It  would 
seem  also  that  long  after  the  year  when  the  law  closing  the 
council  is  said  to  have  issued,  elections  into  the  council  by 
ballot  still  went  on.  It  is  also  remarkable  that  the  law  of 
1297,  closing  the  council,  does  not  appear  in  the  pretty  com- 
plete collection  of  public  decrees,  and  those  who  proposed  it, 
a  Bambo  and  a  Badoario,  did  not  belong  to  the  quarantia,  as 
is  affirmed  by  the  historians.  These  facts  are  fitted  to  excite 
suspicion  respecting  the  law  itself.  Von  Raumer,  who  cites 
for  them  two  Venetian  authorities,  Sandi  and  Tentori,  in- 
clines to  believe  that  no  such  laws  were  ever  given,  that  the 
council  was  open  after  the  time  of  their  reputed  enactment 
as  before,  that  there  was  no  such  sudden  conversion  of  the 
constitution  into  a  close  aristocracy,  that  the  nobles  did  not 
at  this  time  have  an  indiscriminate  admission  into  the  coun- 
cil, but  that  electors  for  admission  into  the  council  still  con- 
tinued. Nay,  it  is  made  probable  that  long  before  this 
critical  time  the  electors,  twelve  or  four  or  three,  did  not 
choose  the  whole  council  anew,  but  sometimes  chose  five  and 
twenty,  sometimes  a  hundred,  and  allowed  the  rest  to  remain 
in  their  places  according  to  the  needs  of  the  time.    Thus  the 


THE  CONSTITUTION  OF  VENICE. 


55 


gradual  steps  towards  a  strict  aristocracy  cannot  be  distinctly 
traced,  although  the  progress  is  certain.* 

3.  The  doge's  council  and  the  pregadi.  We  have  seen, 
Dog<scouncuand  ^^at  as  early  as  the  beginning  of  the  eleventh 
pregadi.  ccntury  the  doge  was  required  to  have  two 

counsellors  associated  with  him.  These  seem  to  have  ex- 
panded into  six  counsellors  chosen,  at  first,  one  from  each 
district  of  the  city,  and  afterwards  appointed,  if  we  are  not 
deceived,  by  the  grand  council.  These,  with  the  three  heads 
of  the  quarantia,  added  subsequently,  formed  the  smaller 
council.  To  the  doge  and  his  six  counsellors,  the  title  of  the 
signoria  was  given,  the  same  which  was  bestowed  on  the  gov- 
erning body  at  Florence  and  elsewhere  in  Italy  ;  and  which 
shows  that  the  doge  was  regarded  as  only  the  head  of  the 
board,  which  had  the  executive  power  in  its  hands. 

At  a  subsequent  period  the  smaller  council,  now  ten  in 
number,  including  the  doge,  was  enlarged  by  the  addition  of 
six  "  savi grandi,"  who  represented  the  senate  or  council  of 
the  pregadi,  of  six  "  savi  di  terra  firma,"  who  governed  the 
provinces  and  in  fact  formed  the  home-department  and  war- 
office  of  the  republic,  and  of  six  "  savi  di  ordini"  who  man- 
aged the  naval  affairs  and  formed  the  board  of  admiralty.  + 
To  this  board  was  given  the  same  title  of  the  collcgi  which 
belonged  to  certain  associates  of  the  signori  at  Florence  ;  and 
that  it  was  a  unity  in  the  eyes  of  the  Venetians  is  shown  by 
its  title  and  the  register  of  its  transactions. 

About  the  same  time  when  the  smaller  council  is  first  spoken 
of,  mention  is  also  made  of  the  pregadi,  or  invited  persons, 
whom  the  doge  called  together  to  assist  him  by  their  advice 
and  give  him  the  weight  of  their  influence.  Originally  few 
m  number  and  with  no  official  power,  they  were  selected  at 
first  from  the  body  of  the  citizens,  then  from  the  principal 
families,  and  early  in  the  thirteenth  century  were  chosen, 
sixty  in  number,  by  electors  named  by  the  grand  council. J 

*  Von  Raumer,  u.  s.,  v.,  241-24:;. 

t  Mr.  Rawdon  IJrown's  Calendar,  prcf.,  p.  xi. 

I  Comp.  tlic  richiesti  of  I-  lorcnce. 


56 


POLITICAL  SCIENCE. 


Afterwards  their  number  was  "  fixed  at  three  hundred,  of 
whom  one  hundred  and  twenty  were  elected  by  the  grand 
council  ;  the  rest  had  their  seats  by  virtue  of  the  offices  they 
held  in  the  state."*  Six  of  their  number  represented  them 
in  the  collegio,  the  "  savi  grandi  "  of  whom  we  have  spoken. 
"Their  importance  seems  to  have  increased  as  the  affairs  of 
Venice  became  more  extensive  and  complicated,  as  is  shown 
perhaps  by  their  journals,  part  of  which,  in  fourteen  volumes, 
before  1331,  having  disappeared  themselves,  are  known  by 
indexes  only,  while  from  that  time  to  the  end  of  the  republic 
they  remain  to  show  the  efficiency  of  this  instrument  of  the 
administration. " 

4.  The  quarantia,  or  board  of  forty,  Avas  at  first  invested 

with  higher  criminal  jurisdiction,  as  well  as  with 
appellate  jurisdiction  in  civil  and  smaller  criminal 
cases.  Three  heads  or  chief  justices  presided  over  it,  who, 
as  we  have  seen,  formed  a  part  of  tlie  doge's  council  and  of 
the  collegio.  Among  the  criminal  cases  brought  before  this 
court  would  be  some  of  a  political  character,  and  from  this 
point  its  functions  went  on  enlarging,  until  they  included  ad- 
visory powers  of  various  kinds.  Propositions  coming  from 
the  sigiioria  to  the  great  council  were  submitted  to  this  board 
for  their  deliberation  and  advice.  They  had  a  hand  in  execut- 
ing and  in  modifying,  if  necessary,  the  law  of  1296  relating  to 
the  great  council.  They  have  been  compared  with  the  areo- 
pagus  of  Athens. 

5.  The  ten  or  council  of  ten.    When  Gradenigo  was  doge, 

and  not  long  after  the  aristocratic  closing  of  the 
great  council,  a  conspiracy  of  an  alarming  char- 
acter was  detected,  in  which  Marino  Bocconio  and  Bajamante 
Tiepolo  were  concerned,  with  a  number  of  others,  some  of 
whom  have  the  aristocratic  names  of  Tiepoli,  Badoarii,  and  Oui- 
rini.  The  record  of  this  in  Dandolo's  clironiclc  is,  that  in  1308 
a  Tiepolo,  with  his  accomplices,  was  banished,  and  that  the 
council  of  ten  was  then  instituted  against  these  and  others  who 

*  Mr.  Rawdon  Brown,  u,  s. 


THE  CONSTITUTION  OF  VENICE. 


57 


sought  to  disturb  the  state  of  the  country.  (Murat. ,  u.  s. ,  under 
the  year.)  The  ten  were,  at  first,  an  extraordinary  commis- 
sion, appointed  to  sit  for  two  months  in  order  to  ferret  out 
this  conspiracy,  and  full  power  was  given  to  them  both  for 
the  purpose  of  summoning  witnesses  before  their  tribunal,  and 
of  using  means,  such  as  they  thought  best,  for  eliciting  the 
truth.  As  suspicion  was  aroused  by  the  information  brought 
before  this  court  of  secret  police,  its  continuance  was  pro- 
longed from  one  space  of  two  months  to  another,  until  it  be- 
gan to  be  regarded  as  a  necessary  addition  to  the  government. 
Then,  it  had  a  year's  lease  of  life,  until,  in  1335,  the  great 
council — with  the  people,  it  is  said — converted  it  into  a  stand- 
ing institution  by  resolution  and  vote.  This  board  of  inquis- 
itors, which  the  "  holy  office,"  then  in  full  strength,  may  have 
suggested,  has  made  more  impression  on  the  minds  of  readers 
of  history  than  any  other  of  the  institutions  of  Venice.  In 
1335  the  conspiracy  of  the  doge,  Marino  Falieri,  was  brought 
to  light  by  this  board,  and  he  was  beheaded  on  the  steps  of 
the  ducal  palace.  In  1432  Francesco  Carmagnola,  the  ablest 
condottiere  in  Italy,  and  then  at  the  head  of  the  army  of  the 
republic,  having  aroused  suspicion  in  regard  to  his  fidelity, 
was  invited  to  Venice  on  the  pretext  of  asking  his  advice  in 
respect  to  peace,  and  after  a  consultation  with  him  until  late 
in  the  night,  was  thrown  into  prison,  tortured  until  he  made 
the  confessions  desired,  then  led,  with  a  gag  in  his  mouth,  to 
the  piazza  before  the  doge's  palace,  and  behcaded—a  terrible 
warning,  whether  he  was  guilty  or  not,  to  a  class  of  men  who 
would  not  scruple  to  overthrow  or  desert  the  governments 
that  employed  them. 

The  council  of  ten  may  be  regarded  as  a  police  board  and 
criminal  court  united,  and  was  associated  with  the  doge  and 
his  six  councillors  as  a  new  council  for  special  i)uri)oses.  The 
members  were  chosen  for  a  year,  and  could  have  no  family 
connection  whatever  with  the  doge,  nor  could  more  than  one 
belong  to  a  single  house.  Its  functions  led  it  to  control  the 
executive  officers,  to  detect  conspiracies  among  the  aristoc- 
racy, to  look  into  every  matter  which  might  prove  dangerous 


58 


POLITICAL  SCIENCE. 


to  the  state.  There  was  no  department  with  which  it  could 
not  interfere.  In  the  fifteenth  century  we  find  the  ten,  or 
this  council  and  the  "junta,"  '"^  corresponding  with  ambassa- 
dors and  consuls,  on  matters  of  diplomacy,  and  in  fact  the 
diplomacy  seems  in  the  sixteenth  century  to  be  in  their  hands. 
Thus  we  find  the  vote  in  this  council  together  with  the  junta 
for  the  affairs  of  Rome,  that  there  be  forthwith  elected  a  no- 
bleman to  go  to  the  king  of  England,  instead  of  Ser.  Hieroni- 
mo  Guistiniano,  who  has  refused.  They  fix  his  salary,  and  say 
that  he  need  give  no  accounts  to  the  signoria,  and  may  keep, 
while  in  England,  five  servants  and  as  many  horses.  .  They 
then  elect  the  ambassador,  and  give  him  his  instructions. 
Perhaps  it  was  only  in  regard  to  secret  envoys  that  they  were 
entrusted  with  so  high  a  power.  (R.  Brown,  Calendar,  i.,  p. 
336.)  But  we  find  the  coUegio  also  holding  communications 
with  Venetian  ambassadors  (p.  340),  and  the  senate  with  the 
doge  doing  the  same  thing  (pp.  341,  343,  345,  of  the  same 
work).    A  most  singular  concurrence  of  powers  ! 

In  1539,  whether  because  the  council  of  ten  had  so  much 
business  on  its  hands  or  was  not  secret  enough,  a  committee 
of  three  was  elected  from  that  body,  known  as  the  tJirce  in- 
quisitors of  state.  With  these  the  secret  police  and  adminis- 
tration reached  its  height. 

We  may  close  our  account  of  the  constitution  of  Venice  at 
this  point,  although  wc  have  to  pass  over  in  silence  the 
administration  of  the  provinces  in  the  days  when  the  power 
of  the  republic  in  the  East  was  at  its  height,  with  other  impor- 
tant points.  What  has  been  said  is  enough  to  show  the 
indigenous  character  of  the  Venetian  government,  and  its 
steady  progress  towards  a  rigorous  aristocracy,  in  fact  to- 
wards the  extinction  of  real  freedom.  Here  there  was  little 
influence  from  those  causes  which  made  mediaeval  Italy  in  other 
parts  what  it  was  ;  there  was  no  h'rank  power  modifying  an 

*  In  1509  it  is  resolved  that  a  junta  of  fifteen,  "  five  at  a  time,  as 
usual,"  be  elected.  "This  junta  is  to  attend  to  all  matters  concern- 
ing the  pope  and  the  Roman  court."  Rawdon  Brown,  Calendar,  under 
that  year. 


THE  CONSTITUTION  OF  VENICE. 


59 


older  constitution,  no  feudalism  and  serfdom,  little  domina- 
tion of  the  church.  Everything  grew  out  of  commercial 
industry,  out  of  the  spirit  of  free  adventure,  yet  nowhere  in 
modern  times  has  so  close  an  aristocracy  appeared.  In 
deserting  the  principles  of  freedom  and  tolerable  equality  on 
which  the  foundations  of  the  state  were  laid,  the  selfish  mag- 
nates of  Venice  seem  to  show  a  clear  comprehension  of  the 
dangers  that  threaten  a  commercial  republic,  from  admitting 
a  roving  and  uncertain  populace  of  sailors  to  a  share  in  the 
government  ;  but  there  was  no  calculation  beforehand  as  to 
the  methods  to  be  used  to  secure  the  power  of  the  aristoc- 
racy. Council  after  council  appears,  each  taking  part  of  the 
affairs  of  an  older  one,  so  that  there  was  no  neatness  about 
the  constitution,  no  accurate  division  of  powers.  Still  the 
state  of  things  at  the  time  seems  to  have  been  apprehended 
with  wonderful  wisdom,  and  one  cannot  help  thinking  that 
more  intelligence  and  practical  sense  was  gathered  here  for 
centuries  than  anywhere  else  in  Europe. 


CHAPTER  V. 


CONSTITUTION  OF  FLORENCE. 


<^  183. 

Florence,  a  mimicipium  of  the  later  Roman  republic  or 
early  empire,  flourished  as  Faesulse,  three  miles 

Early  Florence.  .         ,      , .        ,  ,    .  , 

distant  irom  it,  declined,  and  it  was  the  resi- 
dence of  magistrates  of  the  province  in  the  fourth  century. 
Its  destinies  afterwards,  under  the  Lombards  and  Franks, 
differed  little  from  those  of  other  cities  of  middle  Italy.  In 
the  eleventh  century,  Beatrix,  of  Lorraine,  governed  Tus- 
cany with  her  second  husband,  Godfrey,  of  lower  Lorraine, 
and  afterwards  with  her  daughter  Matilda,  "  the  great  count- 
ess." *  At  the  death  of  Matilda,  by  her  will  her  land  was 
to  go  to  the  pope,  but  the  emperor,  as  her  relative  and  feudal 
superior,  refused  to  confirm  her  donation.  It  was  found  diffi- 
cult to  ascertain  what  was  feudal,  and  what  allodial  property  ; 
and  so  Henry  IV.  seized  on  the  whole.  The  Tuscan  towns 
gained  from  this  strife  in  regard  to  their  independence  ;  they 
seem  to  have  been  drawn  to  the  pope  by  their  common 
interest  with  him  against  the  imperial  head  ;  and  they  were 
probably  more  on  the  papal  side  than  they  would  have  been, 
if,  like  very  many  Italian  towns,  they  had  fallen  under  episco- 
pal jurisdiction. 

In  the  time  of  Matilda,  if  not  before,  Florence  became  a 
,.,  commune,  which  implies  a  certain  amount  of 

1'  lorcncc  a   com-  '  ^ 

self-government  and  internal  union  under  offi- 
cers of  its  own,  with  rights  cither  granted  by  the  good- will 
of  the  seignor,  or  purchased,  or  usurped,  or  possibly  wrested 
from  him.    The  count's  jurisdictit)n  disappears  at  Florence, 

*  Conip.,  for  this  i)ciiod,  C.  Hegel,  \no{.  at  Rostock,  now  at 
Erlangcn,  Siddlcverfass.  v.  Ital.,  ii.,  44,  198,  206. 


CONSTITUTION  OF  FLORENCE. 


6i 


and  there  remain  the  officers  chosen  by  the  town  under  the 
acknowledged  supremacy  of  the  emperors.  This  supremacy 
was  in  theory  always  admitted  at  Florence  until  the  empire 
expired  ;  the  Guelphs  and  the  Guelphic  towns  did  not  deny  it  in 
their  strenuous  resistance  to  the  emperors  and  the  Ghibellines. 
As  late  as  1354,  when  Charles  IV.  (of  Luxemburg)  made 

In  theory  subject  his  Italian  expedition,  the  commune  and  peo- 
to  the  emperor.  pie  of  Florencc  appointed  syndics  who  should 
acknowledge  him  in  their  name  as  king  of  the  Romans,  and 
their  true  lord,  and  in  their  name  take  the  oath  of  fealty  to 
him.  It  was  understood  that  the  commune  was  bound  to 
nothing  else  save  that  to  which,  with  other  communes  of 
Tuscany  and  Lombardy,  they  had  been  bound  of  old  ;  that  the 
priors  and  gonfaloniers  should  be  his  vicars  and  no  one  else, 
that  the  commune  and  people  should  be  exempt  from  all 
taxes,  all  ancient  fines  and  the  like,  as  well  as  from  all  juris- 
diction but  their  own  within  their  territory,  etc.  This  was  a 
kind  of  compromise  ;  but  the  theory  of  the  Guelphs,  as  we 
understand  it,  was  that  the  Roman  people  created  the  empe- 
rors of  old,  and,  acting  through  the  church,  conceded  the 
election  to  the  seven  princes  of  Germany.  "  The  liberty  of 
the  Roman  people  was  in  no  way  subject  to  the  liberty  of 
the  empire  nor  tributary,  like  the  other  nations  who  were 
subject  to  the  people  and  senate  and  commune  of  Rome,  and 
by  the  said  commune  made  subject  to  their  emperor."  " 

Florence  was  in  fact  free  and  had  room  to  expand  itself 
and  to  perform  various  acts  of  sovereignty,  nearly  as  much 
as  if  there  were  no  suzerain  over  it  at  a  distance.  It  appears 
with  substantial  liberty,  first  : 

Under  the  magistracy  of  consuls,  a  name  which  some  of 

Consuls  .-.t  Flo     tlic  towns  in  the  Roman  times  gave  to  their 
chief  municipal  officer  but  which  came  in  no 
direct  tradition  from  the  ancient  consuls  of  the  city.  These 

*  See  C\T|)poni,  Stor.  d'  Ital.,  i.,  append,  v.,  where  tlie  capitula- 
tion Ix'twccii  Charles  IV.  and  l''lorciire  is  given  with  some  remarks 
ofMattco  Villaui  and  of  the  author.  The  words  cited  arc  M.  Villani's, 
iv  ,  77,  in  Miiraton,  R.  ].  Script.,  xiv.,  291. 


62 


POLITICAL  SCIENCE. 


new  consuls  were  variable  in  number,  in  some  towns  as  many 
as  twelve,  and  the  word  came  to  be  applied  to  the  chief 
official  persons  in  the  guilds,  and  in  companies  of  merchants, 
both  in  Italy  and  in  France.  At  Florence  there  were  six  of 
them,  although  one  may  have  been  the  president  of  the 
board,  a  number  corresponding  with  that  of  the  wards — 
sesti — into  which  the  old  town  was  divided.  They  were 
taken  by  election  from  the  men  of  principal  rank  ;  *  adminis- 
tration and  justice  were  in  their  hands  and  they  were  assisted 
by  a  council  of  a  hundred  good  men,  which  had  a  voice  in 
financial  and  other  important  matters.  The  councils  and 
perhaps  the  consuls  were  chosen  by  the  active  citizens  meet- 
ing in  a parlaniento — for  by  this  word  the  assemblies  in  the 
Italian  towns  were  designated  before  it  travelled  north  and 
put  on  different  meanings. 

It  is  probable  that  for  a  time  a  divided  jurisdiction  existed 
at  Florence,  when  the  Countess  Matilda  was  the  feudal  supe- 
rior, between  her  officers  and  the  city-magistrates.  Prof.  C. 
Hegel,  ii.,  l88,  expresses  himself  in  regard  to  this  transition 
period  as  follows  :  "  For  the  Tuscan  towns  the  government 
of  the  two  women,  Beatrix  and  Matilda,  was  about  the  same 
as  that  of  the  bishops  was  for  many  of  the  towns  of  Lom- 
bardy ;  it  was  a  gently  enclosing  sheath  of  sovereignty, 
under  which  the  freedom  within  gained  room  to  unfold  itself 
and  acquire  new  vigor.  Without  doubt  the  margravines  still 
held  their  courts  with  their  counts  or  viscounts  and  the  wonted 
judges  and  scabini  of  the  towns  ;  they  also  granted  privi- 
leges, especially  for  the  benefit  of  churches  and  convents  ; 
but  this  did  not  keep  the  town  from  acting  with  greater  inde- 
pendence than  before,  from  fighting  out  their  quarrels  undis- 
turbed, as  Lucca,  for  example,  hers  with  Pisa,  and  finally 
they  began  to  govern  themselves  by  consuls  of  their  own 
choice." 

*Tlius  ill  1 192,  one  of  the  Fifanti,  and  one  of  the  Ubcrti  held  the 
office.    (Ainmirato,  i.,  62,  ed.  of  1647.) 


CONSTITUTION'  OF  FLORENCE. 


63 


classes  of  persons  who  first  had  a  share  in  the  govern- 
ment of  the  towns  differed  in  different  places. 

Classes  of  persons.  . 

In  some,  as  Milan,  there  were  three  orders, 
capitanci,  ra/rassores,  and  citizens  ;  at  Mantua  appears  only 
the  order  of  citizens  ;  at  Florence,  nobles  without  distinction 
of  rank  and  citizens.  The  nobles  were  included  in  the  com- 
mune if  they  had  houses  in  the  city,  and  this  when  they  owned 
estates  in  the  vicinity  was  a  security  against  lawless  attacks 
on  the  citizens  when  they  went  on  commercial  journeys.  In 
fact,  some  of  the  cities  took  the  measure  of  forcing  the 
country-nobility  into  the  towns,  that  they  might  get  them 
more  into  their  power.  G.  Villani  says — although  the  account 
is  suspected — that  the  emperor  Frederic  I.,  in  1184,  on  com- 
plaint of  the  nobles  of  the  county  against  the  commune,  that 
the  latter  had  seized  their  castles,  took  from  it  all  jurisdiction 
over  the  county  and  the  villages  it  contained  (v.  12). 

Not  long  after  this,  on  the  death  of  the  emperor  Henry 
VI.  in  1 197,  the  towns  of  Tuscany  chose  a  prior  or  president 
with  a  council  of  rectors  to  assist  him,  and  bound  themselves 
to  accept  of  no  emperor,  duke  or  margrave  without  consent 
of  the  pope.  This  shows  us  the  pope  as  aiming  by  an  alli- 
ance with  the  free  towns  to  secure  to  himself  a  support 
against  the  imperial  authority. 

The  twelfth  century  is  remarkable  for  compilations  and  re- 
,.  ,  ,         ductions  of  statutes,  owing  in  part  to  the  re- 

tany  Uw5.  'or 

vived  study  of  Roman  law,  and  in  part  to  the 
need  of  new  provisions  of  law,  caused  by  the  increase  of 
manufactures  and  commerce.  Pisa  among  the  Tuscan  towns 
made  the  first  code  in  1 161,  the  materials  of  which  were  de- 
rived from  customary  law,  from  the  remains  of  Lombard  law, 
and  from  Roman  law,  which  did  not  come  down  from  tradi- 
tion but  was  added  by  the  lawyers  who  compiled  the  collec- 
tion. (Hcgcl,  ii.,  223.  )  The  statutes  of  Florence,  which  were 
probably  collected  in  the  times  of  the  consuls,  were  repeat- 
edly revised  by  special  commissioners  to  whom  was  given 
the  name  of  arbitri,  and  in  the  course  of  time  received  many 
additions.    The  older  corpus  of  statutes  seems  to  be  distin- 


64 


POLITICAL  SCIENCE. 


guished,  as  the  costituto  del  comiine,  from  the  costitnto  of  the 
captain  or  defensor  of  the  people,  and  the  "  ordinances  of 
justice"  formed  a  special  code  by  themselves. 

^  184. 

About  the  year  1207  the  government  by  consuls  came  to 
an  end  or  was  in  part  superseded  by  that  of  a 
smgie  magistrate  called  the  podesta  (potesta). 
It  is  probable  that  several  years  before  this  date  and  as  early 
as  II 93  such  an  officer  was  at  the  head  of  an'airs,  and  there 
may  have  been  several  years  when  the  old  and  new  forms  of 
magistracy  alternated.*  In  that  year  (Ammirato,  i.,  62, 
book  l),  a  podesta  whose  name  shows  his  Florentine  ex- 
traction and  rettori  of  seven  arts  or  guilds  are  mentioned  as 
having  transactions  with  persons  holding  the  castle  of  Trebbio. 
However  this  may  be,  the  officer  designated  by  this  name 
was  common  in  the  towns  of  Italy  at  and  after  the  time  of 
the  peace  of  Constance  in  1183.  He  was  indeed  a  represen- 
tative of  the  emperor,  as  the  suioreme  judge  and  military 
chief,  but  it  does  not  appear  that  for  this  reason  the  Floren- 
tines adopted  the  office.  He  was  there  as  elsewhere  of  noble 
or  at  least  knightly  extraction,  a  foreigner,  and  a  doctor  of 
law.  He  held  his  office  for  a  year  until  1 290,  when  the  term 
was  abridged  to  six  months.  During  the  seignory  of  King 
Robert  of  Naples,  vicars  of  his  appointment  superseded 
podestas  (1313-1322);  there  were  two  at  once  for  a  short 
time  (1266),  and  the  office,  being  abolished  in  1502,  when  the 
grand  council  was  instituted,  gave  place  to  a  board  of  five 
judges.  The  podesta  was  not  a  supreme  magistrate  in  re- 
ality, although  his  name  was  prefixed  to  public  acts,  and  he 

*  The  anonymous  author  of  the  "  Discourse  concerning  tlie  Gov- 
ernment of  Florence  from  1280  to  1292,"  inserted  by  Count  Cap- 
poni  in  his  recent  history,  i..  378,  append.  No.  2,  and  first  publishcil 
in  the  "  I)eli/.ie  degli  Eniditi,"  ix.,  256, — an  exceedingly  well-informed 
writer, — says  that  "  la  Podesta  was  most  ancient  in  Florence.  They 
say  that  it  [the  office]  commenced  in  1202.  It  is  foimd  much  earlier, 
and  is  what  in  modern  times  is  called  in  the  masculine  il  Podesta. 
So  we  shall  call  it." — G.  Villani  assigns  it  to  1207. 


CONSTITUTION  OF  FLORENCE. 


65 


kept  the  seal  of  the  city,  but  rather  a  judge  ;  and  when  in 
the  earlier  times  he  was  called  to  lead  the  troops  in  military 
expeditions,  the  authority  was  conferred  on  him  by  vote  of 
the  councils. 

The  podesta  was  chosen  by  electors  whom  the  councils  of 
the  commune  appointed  for  this  purpose.  On  his  arrival  at 
Florence  he  swore  in  a  parlaincnto  or  else  before  the  council, 
to  observe  with  his  family  the  statutes  of  the  commune.  His 
family  consisted,  among  others,  of  seven  foreign  judges, 
eighteen  notaries  and  a  number  of  sergeants  or  sheriffs.  Of 
the  judges,  four  formed  with  him  a  board  for  hearing  cases 
of  appeal  in  the  last  instance,  and  three  were  charged  with 
hearing  appeals  from  the  town-judges  of  the  wards  of  the 
city  ;  each  of  the  three  having  two  wards  for  his  province. 
The  whole  work  of  public  justice  maj^  have  been  at  first  in 
his  hands,  but  after  1250  his  jurisdiction  was  chiefly  confined 
to  criminal  cases. 

The  reason  for  selecting  a  foreigner  lay  in  the  desire  to  find 
a  man  who  should  be  impartial  amid  the  quarrels  of  factions, 
of  houses  belonging  to  the  same  faction,  and  of  the  classes  of 
the  inhabitants.  But  Capponi  remarks  that,  •' as  foreigners 
and  seignors  of  high  birth,  they  had  no  good  understanding 
with  the  people,  and  felt  little  regard  for  the  laws  which  they 
were  called  to  execute"  (i.,  138). 

Soon  after  the  establishment  of  this  office  the  county  of 
Florence  was  made  to  swear  obedience  to  the  lordship  or 
scignory  of  thecommune  (1218).  Until  then  different  parts 
of  it  had  been  immediately  subject  to  various  counts  and  gen- 
tlemen. (G.  Villani,  v.,  21.)  This  marks  either  an  increasing 
sense  of  independence  or  that  it  was  felt  necessary  to  take 
away  feudal  rights  from  the  landed  proprietors. 

About  the  same  time  (in  121 5),  the  .strife  between  the 
■^.'I'^!:  i!'^,,*^""'';''"'  Guclphs  and  the  GhibcUines  broke  out  into 

and  Cfhibelliiics  be- 

K'"'  bloody  feuds,  the  introduction  to  the  strife  being 

a  family  quarrel.    A  mc-mbcr  of  the  Buondclmonti,  a  noble 
house  which  had  been  forced  to  come  into  the  city  in  conse- 
quence of  oppressing  travellers  by  tolls  at  Montebuono,  jilted 
VOL.  IL  — 5 


66 


POLITICAL  SCIENXE. 


a  young  lady  of  the  Amidei,  to  whom  he  had  been  betrothed, 
and  married  another  from  the  Guelphic  house  of  the  Donati. 
He  was  killed  on  this  account  by  some  of  the  principal  Ghibel- 
lines,  and  thus  the  strife  spread  through  all  the  noble  families. 
It  is  not  our  purpose  to  enter  minutely  into  this  long  seric? 
of  feuds.  It  is  enough  to  say  that  through  the  reign  of  the 
emperor  Frederic  II.,  and  the  interregnum,  and  long  after 
emperors  succeeded  who  had  friendly  relations  with  the  pope, 
Tuscany  was  divided,  the  towns  waged  frequent  wars  with 
one  another,  the  principal  men  of  the  defeated  faction  fled 
from  their  homes,  or  were  banished  and  then  lived  in  exile 
until  an  opportunity  offered  itself  of  returning  in  the  army  of 
a  foreign  enemy.  Nor  was  the  spirit  of  faction  confined  to 
these  two  great  parties,  but  new  divisions  arose  in  the  triumph- 
ant party  like  those  of  the  Bianchi  and  Neri  at  the  beginning 
of  the  fourteenth  century. 

The  Guelphs  and  Ghibellines  divided,  as  Villani  (v.  391 
expresses  himself,  "  only  in  respect  to  the  signoria  of  the 
state,  and  the  church  [the  emperor  and  the  pope],  but  as 
regarded  the  condition  and  welfare  of  the  commune  they  were 
agreed."  Neither  party  strove  to  abridge  the  growing  indus- 
tries of  the  city,  but  they  were  jealous  of  each  other,  and 
wanted  exclusive  control.  The  wealthier,  untitled  class,  the 
popolaiii  or  popolo  grasso,  were,  for  some  time,  not  drawn  in- 
to the  strife,  although  they  were  in  greater  part  Guelphs,  and 
felt  the  importance  of  keeping  on  good  terms  with  the  pope. 
But  the  nobles  were  so  factious  and  so  unwilling  to  submit  to 
law  that  the  wealthy  class  felt  it  necessary  to  get  control  of 
the  republic,  and  finally  broke  down  the  power  of  the  nobility 
and  excluded  them  from  all  offices  in  the  state.  This  seems 
to  have  been  necessary  for  the  prosperity  of  Florence,  but  it 
was  a  new  tyranny  added  to  the  old  plague  of  a  factious  and 
proud  nobility. 

The  Ghibellines  gained  a  great  victory  over  the  Guelphs  at 
Malaperti  in  1260,  with  the  help  of  the  German  cavalry  of 
king  Manfred,  so  that  the  Guelphic  families  went  into  exile. 
Then  Charles  of  Anjou,  brother  of  Louis  IX.  of  France,  was 


CONSTITUTION  OF  FLORENCE. 


67 


invested  with  the  ItaHan  dominions  of  the  Hohenstauffen,  by 
the  pope,  and  Manfred  was  slain  at  tlie  battle  of  Benevento 
{1266).  Two  years  afterwards  Conradin,  son  of  Conrad  IV., 
of  Germany,  and  the  only  legitimate  descendant  of  Frederic  II. , 
came  down  into  Italy  to  claim  his  own,  but  was  defeated  at 
Tagliacozzo  by  Charles,  and  afterwards  put  to  death  (1268). 
The  Sicilian  vespers  (1282)  were  followed  by  the  loss  of  that 
island  to  Charles,  who  died  in  1285.  The  Guelphs,  until 
then,  were  successful,  and  still  acknowledged  the  claim  of  the 
descendants  of  Charles.  At  Florence  the  fear  of  the  opposite 
party  led  the  Guelphs  and  the  people  to  invest  the  heads  of 
this  faction  from  time  to  time,  when  danger  came  upon  them, 
with  the  seignory  of  the  republic,  first  Charles  of  Anjou 
(1266) ;  then  Robert,  king  of  Naples,  at  the  time  of  the  Ital- 
ian expedition  of  the  emperor  Henry  VII.  (1309)  ;  then  the 
duke  of  Calabria  (1 326),  on  account  of  fears  from  the  em- 
peror Louis  of  Bavaria,  and  Castruccio,  lord  of  Lucca  ;  after 
which,  in  1342,  Walter  of  Briennc,  duke  of  Athens,  who  had 
been  the  duke's  lieutenant  in  the  war  with  Lucca,  was  elected 
seignior  for  a  year  and  then  for  life  (1342).  The  danger 
of  this  practice  of  calling  in  a  foreign  sovereign  or  commander, 
and. investing  him  with  the  chief  power  in  the  republic,  now 
showed  itself  clearly  ;  for  had  not  this  worthless  man  soon 
ruined  his  own  cause,  he  might  have  been  a  tyrant  like  the 
Visconti  of  Milan,  and  established  a  dynasty  in  his  own 
family. 

§  185. 

We  are  now  the  better  prepared  to  trace  the  more  normal 
,        .     political  changes  in  the  constitution  of  I-'lorencc. 

1  he  first  pcopl .  " 

The  first  of  these,  belonging  to  the  )ear  1 250, 
is  called  b>'  Villani  (vi.,  39)  xXw,  prinio  popolo,  and  marks  the 
time  when  the  people,  that  is  the  up[)er  class  of  the  ])C()ple, 
made  the  first  decisive  movement  to  combine  for  self  defence, 
and  for  combination  against  the  nobility.  The  Ghibellines 
were  now  in  tlie  ascendant.  The  leading  Guelphs  were  scat- 
tered abroad,  and  the  other  faction  domineered  over  the  citi- 


68 


POLITICAL  SCIENCE. 


zens.  "  The  good  men  "  of  Florence,  that  is,  the  leading  and 
more  opulent  citizens,  met  together,  deposed  the  podesta 
then  holding  office  together  with  other  officials,  appointed 
thirty-six  caporali  or  heads,  and  a  new  magistrate  whom 
they  called  the  capitano  of  the  people,  with  whom  they  associ- 
ated twelve  anziani  (ancients)  to  serve  as  his  council.  More 
important  still  was  the  formation  of  twenty  companies  of  civic 
militia,  who  were  to  serve  under  their  appropriate  banners, 
subject  to  the  summons  of  the  capitano  and  the  anziani, 
except  in  wars  outside  of  the  city,  when  the  troops  as  before 
were  subject  to  the  podesta  or  other  regularly  appointed 
commander.  This  reminds  one  of  the  election  of  the  tribunes 
of  Rome,  and  was,  in  some  sense,  the  beginning  of  a  double 
people.  Indeed  from  that  time  there  were  two  corporate 
bodies,  the  commune  including  all  the  citizens,  and  the  popolo, 
with  the  capitano  (called  also  dcfcnsorc  and  rcttorc)  as  their 
head.  The  thirty-six  and  the  twelve  appear  afterwards  as 
the  two  councils  of  the  people  with  altered  numbers.  The 
capitano  became  a  chief  judge  by  the  side  of  the  podesta, 
holding  his  office  at  first  for  one  year,  afterwards  for  six 
months,  and  elected  in  a  similar  manner.  He  also  was 
required  to  be  a  foreign  knight,  and  a  doctor  of  the  law  ;  and 
his  jurisdiction  embraced  civil  cases,  together  with  acts  of 
violence,  extortion,  and  fraud.  He  also,  like  the  podesta, 
had  his  judges  and  notaries,  whom  he  was  to  bring  with  him 
to  the  city.  The  institution  of  the  capitano  proved  to  be  of 
no  great  importance  in  the  subsequent  history  of  the  consti- 
tution, but  the  spirit  of  the  popolo  was  raised,  and  the  wealthy 
class  felt  its  unity;  as  they  showed  in  1258,  when  a  conspir- 
acy of  the  Ghibellines  in  the  city  "  to  break  up  the  people 
of  Florence  "  being  discovered  (Vill.,  vi.,  65),  and  the  nobles, 
summoned  to  appear  before  the  podesta,  having  maltreated 
his  subordinates,  a  large  number  of  the  Uberti  and  their 
noble  friends  were  driven  out  of  the  city.  The  people  of 
Florence  which  at  that  time  ruled  the  city,  says  Villani, 
was  exceedingly  proud,  ready  for  high  and  great  undertak- 
ings, and  thought  much  of  themselves.     Their  self-conceit 


CONSTITUTION  OF  FLORENCE. 


69 


was  most  severely  punished  at  Malaperti  two  years  after- 
wards (1260). 

After  this  great  defeat,  Count  Guido  Novello  acted  as 
podesta  for  king  Manfred  at  Florence,  and  the 
ct  irtysix.  Qygjpi^s  Were  in  a  miserable  plight,  all  Tuscany 
being  in  their  enemies'  hands.  The  nobility  were  scattered, 
but  the  citizens  showed  a  disposition  to  resent  the  exactions 
of  the  Count  and  his  German  cavalry.  Accordingly,  a  mid- 
dle course  was  pursued,  in  the  appointment  to  the  office  of 
podesta,  of  two  members  of  a  religious  order  of  cavaliers, 
called  the  cavaliers  of  St.  Mary,  but  known  to  the  people  as 
frati godcnti,  on  account  of  the  life  of  luxury  and  idleness  to 
which  the  order  was  addicted.  They  pretended  to  belong, 
one  of  them  to  the  Guelphic,  the  other  to  the  Ghibelline  party, 
and  received  the  sanction,  if  not  the  express  commandment 
of  Pope  Clement  IV.*  They  appointed  thirty-six  "  good 
men  "  of  both  parties  and  both  classes  to  assist  them  with 
their  counsel,  and  to  provide  for  the  expenses  of  the  com- 
mune. That  the  meetings  of  the  thirty-six  were  held  daily 
in  the  buildings  of  the  consuls  of  the  art  or  guild  of  Calimala 
shows  that  the  principal  merchants  took  part  in  their  delibera- 
tions. 

It  was  during  the  official  sway  of  these  thirty-six  good  men 
that  the  first  known  organization  of  the  seven 

1  he  arts  or  guilds. 

greater  arts  or  guilds,  or,  at  least  a  formal 
recognition  of  them,  took  place.  Guilds  or  schools"  appear 
in  Ravenna  almost  three  centuries  before  the  middle  of  the 
thirteenth  century  ;  they  had  ere  this  been  founded  in  many 
parts  of  Europe,  and  may  have  flourished  at  I-'lorcnce  long 
before  they  acquired  a  legal  standing.  The  organization 
consisted  in  giving  them  heads  {cnpitudini),  afterwards  called 
consuls,  with  assessors  (collegi),  and  captains  of  military  com- 
panies, and  the  right  to  have  gonfalons  or  banners  of  their 
own  with  special  armorial  bearings.  By  these  means  they 
were  united  together  for  the  defence  of  the  city,  and  their 


*  Coinp.  Capponi,  i.,  57. 


70 


POLITICAL  SCIENCE. 


guild-feeling  was  greatly  increased.  The  number  of  guilds 
already  existing  was  twelve.  The  first  seven  were  the  judges 
and  notaries,  the  merchants  of  French  woollens  or  the  art 
of  Calimala,  the  exchangers,  the  guild  of  wool,  the  physi- 
cians and  druggists,  the  silk  weavers  and  mercers,  and  the 
furriers.  The  five  next  guilds,  sometimes  called  the  middle 
ones,  iiiczzani,  which  were  incorporated  somewhat  later,  con- 
sisted of  butchers,  shoemakers,  carpenters,  masters  of  wood 
and  stone,  and  "  rigattieri  "  or  second-hand  dealers,  with 
whom  subsequently  linen  drapers  were  united.  The  nine 
inferior  arts,  which  strove  for  political  power  at  a  later-period, 
constituted  the  lowest  of  the  industries  which  assumed  a  cor- 
porate form.  Within  some  of  the  leading  arts  there  were 
companies  of  workmen  who  seem  to  have  depended,  in  part, 
on  the  officers  of  the  arts  for  settlements  of  disputes.  There 
were,  at  one  time,  twenty-five  industries  thus  subordinate  to 
the  great  art  or  guild  of  wool.  This  lower  stratum  of  the 
people  consisted,  in  part,  of  persons  who  were  without  civil 
rights,  from  the  district  and  county,  or  from  j^laccs  beyond 
the  jurisdiction  of  Florence. 

The  Ghibellines  at  Florence  thought  that  the  "  thirty-six" 
were  inclined  to  favor  the  Guelphs,  whom  the  people  also 
favored  as  the  less  aristocratic  of  the  two,'"'  and  the  pope's 
friends.  Disturbances,  therefore,  arose,  in  which  king  Man- 
fred's podcsta.  Count  Guido  NovcUo,  made  a  cowardly  escape 
from  the  city,  although  supported  by  fifteen  hundred  horsemen. 
With  him  the  principal  Ghibellines  fled,  and  never  afterwards 
did  this  faction  hold  the  republic  under  its  control.  Charles 
of  Anjou,  now  king  of  Naples,  and  appointed  vicar  imperial 
in  Tuscany,  comes  to  the  help  of  the  Florentines,  and  the 
signoria  is  given  to  him  for  ten  years. f 

*  Coinp.  Ammiiato,  i.,  133,  book  ii. 

t  Power  was  conceded  to  Cliarles  of  Anjou  the  more  readily, 
because  an  iini^erial  vicar  accorded  with  the  theory  of  the  emperor's 
sujireinacy,  which  was  still  admitted  in  words.  So  the  vicars  autl 
otliers  to  whom  the  signoria  was  granted  afterwards  on  certain  con- 
ditions, by  vote  of  the  city  for  a  time,  did  not  seem  to  be  inconsistent 
with  the  idea  of  a  practically  indejiendent  republic. 


CONSTITUTIOX  OF  ri.OREN'CE. 


71 


At  this  time  some  changes  took  place  in  the  councils, "  but 
far  more  important  was  the  institution  of  the 

The  Guelfic  party. 

Guclnc  party,  which  had  for  its  prime  object  to 
manage  the  confiscated  property  of  GhibclHnes,  and  which, 
besides  receiving  the  approval  of  the  pope  and  the  king,  was 
formally  established  by  law  of  the  state.  The  property 
referred  to  was  divided  into  three  parts,  one  of  them  assigned 
to  the  commune,  another  lo  the  Guelphs  who  had  suffered 
when  their  enemies  were  triumphant,  and  a  third  kept  to- 
gether in  the  hands  of  this  corporation.  The  Guelfic  party 
had  captains  and  other  officials,  and  was  partly  a  police  to 
watch  the  Ghibellines,  partly  a  board  to  give  aid  and  counte- 
nance to  foreign  Guelphs,  and  partly  the  guardian  of  these 
extensive  estates. 

In  1273,  Pope  Gregory  III.  spent  some  time  in  fruitless 
Peace  of  Cardinal  attempts  to  fcconcilc  thc  parties  in  Florence, 
ijiino.  After  his  death,  his  sister's  son.  Cardinal  Latino, 

was  commissioned  by  Pope  Nicholas  III.,  to  carry  out 
Gregory's  projected  peace.  This  was  at  the  solicitation  of 
Ghibelline  e.xiles,  and  the  court  of  Rome  was  the  more  will- 
ing to  adopt  this  policy  because  the  IIohenstaufTfcn  family 
was  now  extinct,  and  Charles  of  Anjou,  the  head  of  thc 
Guelphs,  was  not  very  obsequious.  The  peace  known  by 
this  cardinal's  name,  thc  leading  provisions  of  which  are 
given  by  Ammirato  (i.,  159.  b.  3)  involved,  besides  some 
restitution  of  estates,  and  relegations  of  certain  persons 
together  with  promises  of  reconciliation  to  be  made  between 
individuals  of  thc  parties,  the  appointment  of  fourteen  men, 
eight  Guelphs  and  six  Ghibellines,  who  were  to  be  put  at  the 
head  of  the  state.  The  fourteen  were  chosen  for  two  months 
by  electors  appointed  by  thc  retiring  fourteen,  assisted  by 
citizens  called  to  aid  them  in  this  work.  They  continued  to 
be  the  supreme  magistrates,  or  sii^noria,  from  12S0  to  1292. 

*  Comp.  Villani,  ii.,  16,  Maccliiav.,  vol.  2,  p.  287  of  his  works, 
Milan  ed.  of  1803. 


72 


poumcAL  scneascBL 


of  tbe  m-eaMsy 
poblic,  exdndi 
this  conld  not:  t 
or  noldes,  and 
guilds  aad 
grandi 
befbie, 
tfaem  2I 


f  i86l 

ZTFO  parties  not  being  able  to 
:'tefe  boi^  danger  of  seri- 
-  =  rff  die  leading  men  of 
ed  a  new  board  to  be 
i  the  priors  of  ti&e 
.  .    .afimala  set  tins  on 
'.ed  as  having  been  elected  by 
die  vards,  vho  like  their 
-ths.    After  Aeur  tinse 
ward,  and  the  other 
:  ^  i  became  the  lawlid 
:  "  erties  of  Flor- 
.    -     .3tTative  board, 
it  was  no  great  nmovation  ;  bat  in 
-  '  tr  of  power  firom  the  coammne 
'  ?  'pnlds  and  for  Ihe  time  to 
'  ^MMrt,  an  abndgment  of 
- :  ending  at  ficstt  to  give 
gniBds.    The  citizens 
i  order,  meant  to  rale  die  re- 
-  i  plebeians.    A  [rfan  like 
r      with  the  cAd  gramdi, 
3ccar  vieh  the  lower 
them.     But  the 
t  been  a  centnry 
:  a  number  of 
'  3.  exchangers 
;  '5niBds. 
-.  On 

^9p0l0  »r»ntf«,  weresode- 
'iaediate  dai^cr  conld 


orman^ 
Some  f  - 

the  other  hand,  the 
pendent  on  the  npp 
be  discorered  in  tL  ^ 

The  priors  varied  in  nnmber,  from  six  to  Indve,  and  when 
the  wards  or  saii  were  replaced  by  qmmrters^  continned  to 
be  e^lit.    They  were  at  fir^t  ^l^^.td  25  the  "  fotirtcca  "  had 


CONSTITUTION  OF  FLORENCE. 


73 


been,  by  the  former  priors  and  by  certain  citizens  called  ricJii- 
esti  from  being  requested  to  act  with  them.  After  1286  and 
until  1292  they  were  chosen  by  the  retiring  priors  and  the 
heads  of  the  twelve  greater  guilds...  After  1292,  were  added 
to  the  numbers  of  electors  such  wise  and  good  men  as  the 
priors  might  select.  Other  changes  in  the  mode  of  election 
of  the  priors  will  be  noticed  in  the  sequel.  The  following 
persons  could  not  be  chosen  ;— a  head  of  a  guild  or  wise 
man  called  to  take  part  in  the  election,  a  kinsman  of  a  prior 
who  had  a  part  in  the  election,  any  one  who  had  been  a  prior 
within  two  years,  any  but  actual  artcfici  or  members  of 
the  guilds,  and  a  cavalier.  If  chosen,  such  a  one  could 
not  lawfully  serve.  The  priors  during  their  two  months  were 
to  eat  and  lodge  in  one  house,  to  hold  no  discourse  with  any 
one  except  in  a  public  audience,  and  not  to  leave  the  city. 

At  the  same  time  when  the  priorate  was  instituted,  the 
nine  inferior  arts  were  called  into  existence  and  organized 
with  heads  (capitudinij,  syndics,  banners,  etc.  They  were  the 
wine-dealers ;  greater  taverners  ;  salt,  oil  and  cheese  sellers  ; 
tanners  in  wholesale  ;  corslet  and  sword-makers  ;  lock  and 
iron-smiths ;  carriage,  target  and  shield-makers  ;  cabinet- 
makers in  wholesale  ;  and  bakers. 

The  upper  guilds  were  flourishing  under  the  new  govern- 
.  Ordinances  of  jus-  "icnt,  but  tlic  graiidl  OX  magnatcs  could  not 
ticein.,,..  give  up  their  feuds,  nor  could  they  forget  the 

times  when  they  were  lords  of  the  city  and  did  as  they  pleased, 
while  now  they  were  governed.  The  unquiet  and  lawless 
class  made  stronger  laws  necessary  ;  and  so  in  1292  .some  of 
the  influential  men  of  the  popolaiii  united  their  counsels  to 
devise  some  more  effectual  legislation,  which  would  repress 
the  violences  of  the  graudi,  and  keep  them  from  ever  again 
getting  the  reins  of  power  into  their  hands.  At  their  head 
was  Giano  della  Bella,  of  an  old  noble  family,  wliich  had 
gone  down  into  one  of  the  guilds.  He  is  charged  ( A mmirato, 
I.,  187,  book  iv.)  with  resentment  against  a  nobleman,  one 
of  the  Frescobaldi,  who  had  grossly  insulted  him,  but  the 
general  voice  of  historians  is  in  his  favor  as  beinu  a  hi«'h- 


74 


POLITICAL  SCIENCE. 


minded  and  patriotic  man.  It  is  interesting  to  find  also  that 
Dante,  likewise  of  noble  origin  but  now  a  popolano,  was 
invited  to  these  consultations.  The  first  ordinances  of  1292, 
i.  c,  of  Jan.  1293  of  the  new  style,  were  supplemented  by- 
others  in  subsequent  years,  especially  in  1306,  and  were  re- 
peatedly modified  afterwards.  Sometimes  they  seem  to  have 
slept  unexecuted  ;  sometimes  they  awoke  to  be  applied  when 
the  grandi  were  disorderly  ;  but  they  always  remained  on 
the  statute  book  and  survived  the  nobility  on  whom  they 
were  intended  to  act,  and  did  act  as  a  check.  It  would  seem 
that  some  of  the  commotions  of  the  fourteenth  century  were 
due  to  the  desire  to  restore  the  old  families  to  power  and  to 
overthrow  the  ordinances,  but  the  tide  was  too  strong  in  the 
other  direction  ;  many  families  became  popolani  which  had 
belonged  to  the  noblesse  ;  to  be  a  graiidc  finally  became  equiv- 
alent to  an  incapacity  for  holding  political  office,  afid  to  be 
made  such  ivas  one  of  tlic  penalties  with  tuhich  prominent 
citiscns  were  visited  by  their  political  enemies.''^ 

The  ordinances  apply  to  wrongs  committed  by  grandi  and 
not  to  popolani  involved  in  their  quarrels,  nor  to  the  wrongs 
of  grandi  against  their  domestics.  If  a  grande  wounds  or 
kills  a  popolano  the  severest  and  most  summary  justice  must 
be  administered  by  the  podestii  (passim).  No  composition 
between  them  and  injured  parties  is  allowed.  Proof  by  an 
injured  party's  oath  can  be  admitted,  or,  if  he  be  dead,  by  the 
testimony  of  his  nearest  relatives  and  of  three  witnesses  de- 
claring what  is  public  fame.  (Rubr.  6.)  Wounds  injuring  a 
limb  subject  a  grande  to  the  payment  of  two  hundred  florins, 

*  All  tlie  historians  refer  to  these  ordinances.  So  also  does  Hiill- 
nian  in  his  Stikltewcscn  der  Mittelatt,  iii.,  435-438.  1  have  found 
Capponi's  account  of  some  of  their  contents  the  best  (i.,  93,  94).  1 
liave  also  had  in  iny  hands,  kindly  lent  by  the  superintendent  of  tlie 
Boston  Public  I,il)rary,  ISonaini's publication  of  tiic  fust  and  incomplete 
Latin  draft  of  the  ordinances  with  protocols,  etc.,  and  the  Italian 
redaction  of  1324  given  out  by  Kmihani  (Jiudici,  in  an  appendix  to 
hisStoriadei  Mnnicipi  Italiani  (pp.  302-422),  which  also  contains  the 
statiites  of  the  guild  of  Caliniala.  Finally,  an  excellent  i)rogranime  of 
Prof.  C.  Hegel  (lulangen,  18C7)  has  been  of  great  use  to  nie. 


CONSTITUTION  OF  FLORENCE. 


75 


and  his  hand  is  to  be  cut  off  if  he  fails  to  pay  the  money  with- 
in ten  days.  If  a  grande  has  paid  only  part  of  his  fine,  his 
sureties — it  would  seem  that  every  grande  was  required  to 
have  sureties  for  his  peaceable  behavior — are  to  pay  the 
rest.  If  it  surpasses  the  amount  for  which  they  gave  security, 
a  father  must  pay  for  a  son,  a  son  for  a  father,  a  brother  for 
a  brother,  being  his  fathe.r's  son,  and  so  on.  (Rubr.  80.) 
Other  provisions  keep  the  grandi  out  from  all  places  and 
offices  except  the  councils  of  the  commune,  or  exclude  them 
from  the  registers  of  citizens  between  sixteen  and  seventy. 
(Rubr.  58.)  Penalties  were  imposed  on  a  podesta  who  neg- 
lected his  duty  in  respect  to  the  ordinances.  The  grandi 
could  not  accuse  nor  bear  witness  nor  appear  in  court  against 
popolani,  without  consent  of  the  priors.  (Rubr.  43  in  Cap- 
poni.)  They  were  not  allowed  to  live  within  one  hundred  and 
fifty  ells  of  a  bridge,  nor  leave  their  houses  in  a  time  of  up- 
roar, nor  appear  at  weddings  or  funerals  with  armed  retainers. 
(Rubr.  49-50,  ibid.)  These  may  suffice  to  show  the  spirit  of 
these  strange  ordinances,  passed  by  the  most  enlightened 
men  of  Florence,  Dante  probably  being  one,  and  by  the  pub- 
lic councils. 

To  aid  in  the  execution  of  these  laws  a  gonfalonier  e  dell  a 
r.onhionicre  deiia  ^"^■^'''•"^'^  "'^s  appointed,  who  was  to  belong  to 
gmstuia.  ^j-  ^j^g  greater  guilds,  to  have  a  vote  witli 

the  priors,  and  to  pertain  to  no  house  from  which  any  of  the 
priors  came.  This  office  was  to  last  two  months  like  theirs, 
and  to  be  filled  successively  by  persons  from  the  si.x  wards  of 
the  city.  lie  was  elected  by  the  retiring  board  of  priors  and 
certain  assistants.  He  had  in  charge  the  gonfalon  of  the 
pcojjle  and  a  body  of  elected  foot  soldiers  was  under  his  com- 
mand, which  consisted  first  of  one  thousand,  then  was  en- 
larged by  one  thousand,  and  in  1295  by  two  thousantl  more. 
And  similar  regulations  in  regard  to  the  county  and  district 
of  h'iorence  were  made  at  the  same  time,  the  intention  being, 
apparently,  to  have  a  militia  ready  on  any  disturbance  pro- 
ceeding from  Ihc  grn/idi. 

The  gonfaloniero  of  justice  being  at  the  head  of  the  city 


76 


POLITICAL  SCIENCE. 


troops  and  one  of  the  signori,  or  signoria,  as  the  priors  were 
called,  was  not  in  a  situation  to  aid  in  carrying  out  the  ordi- 
nances of  justice  for  which  the  office  was  first  devised.  It  was, 
therefore,  decided  by  the  councils  and  the  signori,  that  a  new 
officer  should  be  created  to  execute  the  ordinances  of  justice. 
He  was  called  an  csecutore,  was  to  be  a  foreigner,  to  hold  his 
office  like  the  podesta  and  capitano  for  six  months,  but,  un- 
like them,  to  be  in  condition  not  a  nobleman  but  a  man  of 
the  people,  and  not  a  doctor  of  laws  ;  and  to  have  like  them 
his  subordinates,  judges  and  others.  He  had,  also,  a  certain 
supervision  of  the  conduct  of  the  podesta  and  capitano  in  re- 
gard to  questions  arising  out  of  the  ordinances  of  justice.  It 
is  unnecessary  to  speak  further  of  this  magistrate,  for,  al- 
though the  office  continued  into  the  fifteenth  century,  his  oc- 
cupation assigned  to  him  by  the  ordinances  was  then  gone, 
and  he  sank  to  the  condition  of  a  bailiff.  (Capponi,  ii.,  321, 
365.) 

§  187. 

Every  principal  authority  at  Florence  had  its  council.  That 
of  the  priors  and  gonfaloniere  consisted,  in  1306, 

Priors'  Council.  .  . 

of  Sixteen  banner-bearers  of  the  companies  of 
citizen  troops.  These  companies  had  their  origin,  as  we 
have  seen,  in  the  time  of  the  anziani  (1250),  and  were  then 
twenty  in  number.  Restored  or  reformed  by  Cardinal  de 
Prato,  who,  in  the  strife  of  the  Bianchi  and  Neri  went  to 
Florence  as  a  peacemaker  from  the  pope,  they  were,  in  1321, 
associated  with  twelve  good  men,  two  from  each  ward,  chosen 
for  six  months,  as  the  assessors  of  the  signori,  and  were  re- 
garded as  one  of  the  most  honorable  bodies  in  the  state.  All 
important  business  was  submitted  by  the  signori  to  these 
"  collegi,"  as  they  were  called,  but  they  were  not  necessarily 
in  perpetual  session.* 

*  T-eonardo  Bruni,  chancellor  and  liistorian  of  Florence,  who  died 
old  in  1444,  wrote  a  skctcli  of  its  constitution  in  Oreek  (edited  by 
C.  F.  NiMiniann,  1822,  Frankfort  on  the  Main),  in  which  he  calls  the 
gonfuloincri  of  the  companies,  the  u/jp^oires  tuiv  tfivXCiv,  consuls  of  tlie 


CONSTITUTION  OF  FLORENCE. 


77 


Between  the  time  when  the  gonfaloniere  of  justice  was  first 
created  (1292)  and  the  institution  of  the  eseciitore  (1306), 
several  important  events  occurred  which  we  must  notice  in 
passing.  One  was  the  banishment  of  Giano  della  Bella,  the 
author  of  the  ordinances,  obtained  by  the  vengeance  of  the 
grandi*  Another  was  the  bitter  strife  between  the  Bianchi 
and  Neri,  parties  of  Guelphs,  of  which  the  Cerchi  and  Donati 
were  respectively  heads.  Of  the  two  parties  the  Bianchi,  to 
which  Dante  belonged,  and  with  si.x  hundred  of  whom  he 
went  into  exile,  may  be  said  to  have  had  a  leaning  towards 
Ghibellinism,  but  the  strife  originated  in  a  division  between 
members  of  the  great  and  powerful  family  of  Cancellieri  at 
Pistoia.  To  compose  it,  the  pope,  Boniface  VIII.,  sent 
Charles  of  Valois,  brother  of  Philip  the  Fair  of  France,  to 
Florence.  This  was,  without  question,  a  plan  of  the  Neri, 
who  did  their  best  to  make  it  believed  that  their  foes  were 
Ghibellincs.  He  came,  with  twelve  hundred  horsemen, 
under  an  unusually  solemn  authorization  of  the  signori,  sec- 
onded by  the  general  council  of  the  Guelphic  party,  and  by  the 
votes  of  all  but  one  of  seventy-two  trades  included  under  the 
guilds,  and  gave  his  promise  that  he  would  exercise  no  juris- 
diction, nor  accept  any  honor,  nor  change  any  usage  or  law. f 
(1301.)  But  he  did  not  keep  the  oath  which  he  made  to  this 
effect,  either  because  he  was  unwilling  or  was  unable  ;  the 
priors  who  entered  office  Oct.  15  were  made  to  resign,  and  a 

guilds,  /.  e.,  and  makes  the  guikls  sixteen  in  muiil)cr.  For  the  last  state- 
ment I  cannot  account,  and  for  tlie  first  only  by  his  seeking  to  give 
a  (Jreek  coloring  to  his  works  at  the  expense  of  truth.  Just  after- 
wards he  is  willing  to  be  inaccurate  again,  when  he  says  (j).  80),  that 
there  are  two  great  councils,  one  of  the  jjeople,  tlie  olher  of  the 
dptcrrm.  lUU  the  people  could  belong  to  the  council  of  tlie  conunune 
as  well  as  the  dfna-Toi. 

♦Conip.  Aniniirato,  i.,  123,  b.  iv.,  Vilhuii,  viii.,  8,  and  SchefTer- 
IJoichorst,  l-'lor.  Stud.,  i)p.  89-91.     (I.eip/..,  1874.) 

t  ^o  Capponi.  Villani  (viii.,  47),  who  was  present  when  author- 
ity was  given  him  "to  heal  the  ([uarrel  of  the  duelphs,"  and  .Anuui- 
rato(i,  213,  li.,  iv.),  say  that  the  signoria  and  guard  of  the  city  were 
plated  in  his  hands.  Capponi  (i.,  118),  interprets  this  as  merely 
"  l)arole  d'  onore," 


78 


POLITICAL  SCIENCE. 


new  board  was  chosen  early  in  November  to  take  their  place  ;  * 
the  many  exiled  Neri,  and  among  them  the  head  of  the  party, 
Corso  Donati,  returned  without  law  :  soon  the  whole  city 
was  filled  with  confusion  and  Charles  left  the  city  to  return  to 
France.  Many  sentences  of  banishment  were  issued  against 
the  liianchi  during  his  stay,  and  after  his  departure  (1301- 
1302).  The  pacification  effected  by  Cardinal  da  Prato  (1304) 
brought  back  a  degree  of  peace,  which  was  more  likely  to  be 
permanent  when  the  lawless  Corso  Donati,  condemned  as  a 
rebel  and  traitor,  was  slain  in  1308. 

The  presence  in  Italy  of  the  Emperor  Henry  VII.  (1310- 
1313)  led  to  the  appointment  of  Robert,  then  duke  of  Cala- 
bria, as  signor  of  the  city  of  Florence  for  five  years,  on  condi- 
tion, however,  of  making  no  changes  in  the  government 
except  that  of  putting  his  own  vicars  in  the  place  of  podestus. 
His  authority  was  afterwards  prolonged  until  1322.  This 
plan  was  thought  necessary  on  account  of  the  formidable 
Ghibclline  leaders  in  Pisa  and  Lucca,  the  latter  of  whom, 
Castruccio  Castruccani,  died  in  1328  about  the  same  time 
with  the  duke  of  Calabria.  At  this  time  two  changes  were 
made  in  the  constitution  which  call  for  our  attention — the 
simplification  of  the  councils  and  the  sqiiittinio,  as  it  was 
called,  from  the  Latin  scrutiuiiun,  united  with  the  drawing 
of  magistrates'  names  by  lot. 

>^  188. 

The  councils  of  Florence  had  been  before  this  five  in  num- 
ber, besides  the  collcsri  of  the  priors.  They 

C<)unc;is.  '  .5  1/ 

were  the  council  of  one  hundred,  the  oldest  of 
all,  a  smaller  and  a  larger  council  of  the  commune,  ninety  and 
three  hundred  respectively,  presided  over  by  the  podcsta, 
and  two  councils  of  the  people  (or  of  the  capitaiio  and  heads 

*  This  change  scCms  to  be  that  wliich  Dante  has  in  liis  miiul  (as 
Scheffer-Boichorst,  in  liis  I''lor.  Stud.,  212,  sliows)  in  I'uig.  vi.,  near 
the  end. 

— clie  f.-ii  tanto  sottili 
I'idvvediiiiciili,  clie  a  mezzo  Novcnil)re 
Null  giim^c  quel  die  lu  il'  (Jltoliie  fill. 


CONSTITUTION  OF  FLORENCE. 


79 


of  twelve  guilds),  a  smaller  of  eighty  members  called  the 
credensa,  and  a  larger.  Now  these  were  all  reduced  to  two, 
one  of  the  commune  of  two  hundred  and  fifty  members, 
among  whom  grandi  might  sit,  and  one  of  three  hundred  to 
which  only  popolani  could  be  eligible.  The  elections  were 
made  before  1282,  by  the  podesta,  capitano,  and  priors  (the 
three  greater  rectors  as  they  were  called),  and  the  time  of 
services,  in  the  larger  ones  at  least,  was  one  year.  The  coun- 
cil of  the  people  consisted,  in  century  XV.,  often  for  every 
gonfalon,  or  one  hundred  and  sixty  with  the  sign^ri,  their 
collcgi,  and  some  other  officials.  For  the  clearest  account 
of  them  at  that  time,  I  refer  to  the  anonymous  author  of  "  A 
Discourse  on  the  Government  of  Florence,  between  1280  and 
1292."  * 

After  the  councils  were  reduced  to  two,  questions  of  admin- 
istration proposed  in  the  signoria  and  approved  by  the  black 
beans  of  two-thirds  (counting  the  eight  priors  and  the  gonfalo- 
niere),  were  submitted  to  the  collcgi,  and  then  to  the  council 
of  the  people.  If  this  council  gave  its  assent,  the  pro[)osition 
was  submitted  the  next  dav  to  the  council  of  the  conimunc, 
and,  if  it  passed  through,  needed  no  further  ratification. 
New. laws,  and  I  believe  changes  in  laws,  needed  the  assent 
of  the  people,  called  together  in  a  parlamento  by  the  gonfa- 
loniere  of  justice.  Other  councils,  as  that  of  the  two  hundred 
which  took  the  place  of  the  two  just  mentioned,  in  1471  ;  or 
of  the  earlier  two  hundred  created  in  1411,  under  the  influ- 
ence of  Maso  degli  Albizzi,  without  whose  consent  no  war  nor 
foreign  expedition,  league  nor  confederation  was  lawful  ;  or  of 
the  important  council  of  seventy  in  the  time  of  Lorenzo  de 
iMedici,  which  were  late  experiments  to  sew  new  cloth  on 
the  old  garment,  or  to  gain  some  temporary  expedient,  we 
need  barely  mention. 

The  squttiiiiio  of  1328,   first  projected  in  1323.  was  an 
important  change.    The  plan  was  to  entrust  to 

Si|iiiitiiiiu.  "I 

a  large  committee  of  official  persons  and  tlieir 
assessors,  the  business  of  determining  what  citizens  were  fit 
*  111  till-  .ippcMKli.x  to  Capiioiii's  Stoiia,  vol.  1. 


80 


POLITICAL  SCIENCL. 


to  hold  office,  and  then  to  put  the  names  in  a  bag  or  bags  ready 
to  be  drawn  by  lot,  and  kept  under  watch  until  the  time  for 
drawing  came.  In  1328,  the  committee  consisted  of  ninety- 
eight,  and  every  one  was  rejected  who  got  only  sixty-eight 
votes  out  of  this  number.  The  bags  were  put  into  a  coffer, 
and  the  coffer  was  fastened  with  three  locks,  one  of  the  keys 
of  which  was  committed  to  the  captain  of  the  people,  and 
one  to  the  friars  of  each  of  two  religious  houses.  The  coffer 
was  opened  under  due  regulations  three  days  before  the 
expiration  of  the  term  of  the  actual  priors,  and  a  new  set 
were  chosen.  In  1343,  when  the  squittinio  was  made  by  two 
hundred  and  six  citizens,  thirty-three  hundred  and  forty-six 
were  set  aside  (if  I  understand  the  passage),  so  that  only  a 
tenth  remained  for  the  drawings  to  be  made  every  two 
months.* 

In  the  provisions  of  the  balia  of  the  important  year  1393, 
we  read  (Capponi,  ii.,  515)  that  if  any  persons  whose  names 
were  put  into  the  bags  for  priors  deserved  to  be  gonfa- 
lonieri,  they  could  be  taken  out  and  put  into  the  bag  for 
that  magistrate,  and,  furthermore,  that  persons  whose  names 
were  in  the  bag  for  that  magistrate,  if  judged  to  be  unfit 
for  the  office,  might  be  taken  out  and  put  in  the  bag  for 
priors  in  the  same  quarter.     (51^  ) 

These  "  imborsations,"  at  one  time,  took  place  once  in 
five  years  ;  bags  were  provided  for  the  priors,  and  separate 
ones  for  the  gonfalonieri  of  justice  and  the  same  process 
must  have  been  gone  through  with  the  collcgi.  So  also  the 
councils  were  chosen  by  lot,  and  the  names  put  into  the 
bags  for  each  guild,  not  at  the  time  when  the  squittinio 
for  the  higher  officials  was  made,  but  when  occasion  re- 
quired.f 

It  is  evident  that  in  the  selections  of  persons  fit  for  office, 

*  Capponi,  i.,  242,  "post  a  partito  3346,  ma  non  rimasero,"  etc. 
Ammirato,  i.,  482,  b.  9,  furono  nominati — di  (juali  non  rimase  il 
decimo." 

t  Leonardo  Aretino's  Greek  account  of  the  constitution  of  Flor- 
ence, ed.  Neumann,  p.  80. 


CONSTITUTION  OF  FLORENCE. 


8i 


there  was  great  room  for  intrigue.  If  a  party  predominated 
largely  in  the  committee  of  selection,  the  other  would  be 
excluded.  And  at  a  later  period  it  would  seem  that  great 
knavery  was  practised  in  this  respect. 

The  divieto  is  to  be  considered  in  connection  with  this 
mode  of  appointing  to  office.  This  was  a  disqualification  for 
holding  office,  for  various  reasons.  If  a  person  whose  name 
was  drawn  was  below  thirty,  or  was  a  debtor  to  the  treasury, 
or  had  a  parent,  a  child,  or  brother  in  a  similar  office,  he  was 
disqualified.  So  a  prior  could  not  fill  the  same  office  again 
until  three  years  had  elapsed,  and  relatives  could  not  suc- 
ceed one  another  within  six  months. 

The  mode  of  appointment  to  office  above  described  was 
intended  to  prevent  factions  from  choosing  their  candidates, 
and  gave  a  chance  of  office  to  a  wider  range  of  citizens. 
There  can  be  no  doubt  that  upon  the  lottery  principle  it 
increased  the  desire  of  office,  and  on  the  other  hand,  it  ex- 
plains, in  part,  why  there  was  so  much  eagerness  to  put  legal 
obstacles  in  the  way  of  holding  it. 

In  1342,  Walter,  of  Bricnne,  duke  of  Athens,  who  had 
acquired  reputation  under  the  duke  of  Calabria,  was  chosen, 
on  account  of  the  incompetence  of  the  military  committee 
of  citizens,  to  be  captain-general  of  war  for  one  year,  and 
afterwards  the  signoria  was  given  to  him  in  a  regular  way. 
Then  in  a  tumultuary  meeting  it  was  voted  to  him  for  life. 
The  plotters  were  grandi  ;  the  mob  which  conferred  the 
power  consisted  of  their  retainers  and  the  dregs  of  the  peo- 
ple ;  and  he  was  installed  in  the  priors'  palace  by  grandi,  who 
forced  the  doors  open  for  his  admission.  The  ordinances 
of  justice  which  they  designed  to  remove  were  suspended, 
and  he  made  other  changes  ;  but  his  worthlessness  aroused 
the  hatred  of  all  classes,  and  he  was  driven  out  of  the  city  in 
July  of  the  next  year.  The  grandi,  having  had  a  share  in 
the  rising  against  him,  were  admitted  to  a  participation  in  the 
signoria,  and  other  offices  ;  but  the  peace  between  the  orders 
was  not  lasting,  an  armed  contest  of  grandi  with  popolani 
and  their  allies  from  abroad  (.Sept.  24,  1343),  ended  in  the 
VOL.  II.— 6 


82 


POLITICAL  SCIENCE. 


defeat  of  the  former,  and  they  lost  their  power  forever.* 
From  this  time,  for  the  most  part  only  a  place  in  the  councils 
of  the  commune  was  open  to  them,  with  such  extraordinary 
and  temporary  offices,  and  such  commissions,  as  would  not 
arouse  the  jealousy  of  the  people. 

After  this  defeat  of  the  grandi  there  were  some  changes  in 
the  constitution.  The  priors  were  made  to  be  eight  in  num- 
ber, two  from  each  of  the  four  quarters  into  which  the  city 
was  now  divided ;  two  only  were  to  belong  to  the  seven 
upper  guilds,  three  to  the  people  of  the  middle  guilds,  three 
to  the  lower,  and  the  gonfaloniere  of  justice  was. to  come 
from  each  of  these  parts  of  the  people  in  turn.  A  large 
number  of  families  of  grandi,  five  hundred  and  thirty  in  all, 
but  not  for  the  most  part  of  the  older  houses,  were  allowed 
to  go  down  and  become  incorporated  in  the  guilds.  A  new 
registry  was  made  which  we  have  spoken  of  elsewhere,  and 
the  ordinances  of  justice  were  modified. 

§  189. 

The  fourteenth  century,  besides  these  revolutions— four 
Gueiphic  iciders  govemmcnts  having  succeeded  one  another  in 
—their plans.  j^^^  than  a  year — was  memorable  on  account  of 
the  bankruptcies  of  a  number  of  bankers,  caused  especially 
by  the  failure  of  Edward  III.,  of  England,  to  pay  his  debts 
(1345);  and  then  came  the  great  pestilence  of  1348. f  About 
this  time  the  lower  guilds,  whom  the  last  changes  had  raised 
politically  and  filled  with  new  hopes,  began  to  aspire  after 
the  government  of  the  state.  In  the  lower  guilds  there  were 
persons  of  foreign  extraction  who  had  received  citizenship, 
to  prevent  whom  from  obtaining  office  a  rule  was  made,  in 

*  Comp.  Villani,  xii.,  19-21  ;  Animirato,  i.,  455-4CS2,  R.  9  ;  Caj-)- 
poni,  i.,  221-248.  The  grandi,  says  the  latter,  "wore  lialf  destroyed 
in  the  oppression  of  the  (Ihibclliiics,  half  of  the  rest  in  the  iiersc-cu- 
tion  of  llic  liianchi."  ( )tiici  s  bccanu;  popohini  ;  sonic  families  died 
out. 

f  We  may  mention  here  that  in  conseciuence  of  tlie  mortality  tlic 
tWL'nty-one  guilds  were  for  a  time  reduced  to  sixteen. 


CONSTITUTION  OF  FLORENCE. 


83 


1346,  that  no  foreigner  admitted  to  citizenship  could  hold 
ofifice  unless  he,  his  father  and  grandfather  had  been  born 
within  the  county  of  Florence,  although  his  name  had  been 
put  into  the  bag.  Another  law,  of  1 347,  enacted  that  a  per- 
son condemned  as  a  Ghibelline  from  1 30 1  onward  by  accept- 
ing office  was  made  liable  to  a  heavy  fine  ;  and  six  witnesses 
declaring  him  such  on  public  fame  were  enough  to  prove  the 
charge.  Those  who  had  elected  him,  and  those  who  should 
venture  to  propose  the  revocation  of  this  law,  were  exposed 
to  the  same  penalty  and  to  the  loss  of  office,  even  if  they 
were  priors.  (  Capponi,  i.,  281,  282.)  An  earlier  law  had  for- 
bidden foreigners  to  act  as  attorneys  in  any  case  or  business 
(ib.  i.,  277). 

These  laws  were  due  to  the  influence  of  the  captains  of  the 
Guelphic  party  who  now  began  to  show  a  new  and  dangerous 
activity.  Why  should  they,  after  comparative  inaction  for  a 
long  time,  come  forward  to  the  front  rank  of  political  im- 
portance, when  there  was  nothing  to  fear  from  exiled  Ghibcl- 
lines,  and  the  old  lines  of  party  had  faded  out  ?  The  election 
of  the  Emperor  Charles  IV.,  in  connection  with  the  intrusion 
of  strangers  into  the  guilds,  has  been  assigned  as  the  cause  ; 
but  there  was  nothing  to  fear  from  the  emperor  then,  or  after- 
wards in  his  two  visits  into  Italy.  The  laws  spoken  of,  to- 
gether with  subsequent  events,  reveal  a  design  of  the  existing 
aristocracy,  or  of  those  popolani  who  desired  to  keep  the  lower 
people  from  increasing  their  political  importance,  to  retain 
power  in  their  own  hands  and  prevent  the  lower  guilds  from 
ruling  the  city.  Nowhere  could  a  plan  for  this  purpose  have 
been  more  likely  to  be  successful  than  in  the  parte  Guclfa, 
an  old  institution  with  large  estates  in  its  hands  and  managed 
even  then  by  grandi  and  by  popolani  of  the  older  families. 

To  enter  minutely  into  the  movements  of  the  Guelphic 
leaders  is  out  of  the  question  ;  we  will  only  attempt  to  show 
how  these  movements  bore  on  the  Florentine  constitution." 

*  Comi).  for  the  feelings  of  a  contemporary.  i\r.  V'ill  iiii.  ii.,  2; 
viii.,  24,  31,  ,^2  (in  Miiratori.  Rcr..  Ital.,  Scr.,  xiv.'  and  fur  the  legis- 
lation ami  iii.itory,  Capiioni,  1).  iii.,  ch.  6  and  7, 


84 


POLITICAL  SCIENCE. 


Their  political  aims  were  covered  up  under  the  mild  terms, 
ainnionire,  ammojiizioiie,  which  denoted  a  warning,  given  to 
an  active  citizen  and  generally  to  a  citizen  in  one  of  the 
lower  classes,  that  he  was  suspected  to  be  a  Ghibelline  and 
that  until  he  cleared  himself  (  for  which  the  word  cJiiarire 
was  usedl  he  could  not  safely  accept  an  office. 

These  admonitions  and  laws  aiming  at  their  control  appear 
from  time  to  time  down  to  the  year  1378.*  In  1353  the  two 
families  of  popolani,  the  Albizzi  and  Ricci,  who  were  at  the 
head  of  the  Guelphic  party,  broke  out  into  a  feud,  and  thence- 
forth the  latter  seemed  to  aim  at  a  milder  and  more  popular 
course  than  the  other.  In  1366  Uguccione  de'  Ricci  caused 
a  law  to  be  passed  which  increased  the  number  of  the  Guelphic 
captains  to  nine,  of  whom  two  were  to  be  grandi,  five  popo- 
lani and  two  from  a  lower  guild.  Two-thirds  were  necessary 
to  try  a  person  declared  to  be  a  Ghibelline,  and  a  board  of 
twenty-four  citizens  was  appointed  to  hear  an  admonished 
person  in  his  defence.  Two-thirds  of  the  nine  captains  and 
the  twenty  four,  or  twenty-two  in  all,  were  necessary  for  his 
condemnation.  In  1377  the  "  fury  of  aminoiiicione,"  as  it  has 
been  called,  raged  with  especial  violence.  Eighty-seven  instan- 
ces of  it  belong  to  the  nine  months  before  July,  1378.  Through 
these  years  the  tyranny  of  this  Guelphic  party  was  intolerable, 
not  because  they  put  their  foes  to  death  or  sent  them  into 
banishment,  but  because  they  determined  by  irresponsible  tri- 
bunals who  should  have  political  rights  in  the  state.  A  divicto 
or  exclusion  from  office  of  this  kind,  as  Capponi  remarks  (ii. ,  2), 
"  might  not  be  regarded  as  a  thing  equal  to  the  terror  it  in- 
spired and  to  the  effects  which  followed  from  it.  But  public 
life  had  so  entered  into  the  very  marrow  of  this  people  that  not 
to  have  a  share  in  the  state  seemed  like  being  nothing." 
In  1378,  occurred  the  "  tumult  of  the  ciompi,"  or  lower 
Tumult  of  the  ci-  class,  for  whicli  thcrc  wcrc  various  causes  :  the 
•""P"-  jealousy  between  the  upper  and  lower  guilds  ; 

the  dissatisfaction  of  the  operatives  with  their  wages,  the 

*  More  than  two  hundred  were  admonished  between  1357  and  1366. 
Macchiav.  Hist.,  book  iii.,  369,  Milan  cd.  1804. 


CONSTITUTION  OF  FLORENCE. 


85 


burden  of  debt,  and  perhaps  machinations  of  a  party  opposed 
to  the  Guelphic  faction,  which  went  far  beyond  the  designs  of 
their  authors.  "  The  most  powerful  causes,"  says  the  histo- 
rian just  quoted  (ii.,  6),  "  of  the  disturbances  of  this  people 
of  Florence  "  (or,  one  might  say,  the  ultimate  causes)  "  were, 
besides  the  arbitrary  distribution  of  the  burdens  put  upon 
the  many  by  the  few,  luxury,  the  immoderate  desire  of 
riches,  and,  through  the  greediness  of  gain  and  profuse  living, 
the  incessant  agitation  of  the  people  to  the  very  bottom  by 
many  and  rapid  changes  of  fortune."* 

The  tumult,  in  order  to  be  fully  understood,  must  be  looked 
at  in  its  particulars,  for  which  we  have  no  room.  Suffice  it  to 
say  that,  on  first  breaking  out  in  a  blind  way  it  was  checked 
for  a  time  by  measures  tending  to  pacify  the  ainvioniti  and 
the  people  ;  but  that  it  broke  out  again  three  weeks  after- 
wards through  a  plan  of  the  lower  guilds  to  seize  the  power  of 
the  state.  The  signoria  at  that  time  were  overawed  and  left 
their  palace  in  the  power  of  the  mob,  who  on  the  spot  chose 
a  wool-carder,  Michel  Lando,  as  gonfaloniere.  He  accepted, 
and  on  the  following  day  was  chosen  in  a  public  parlaincnto, 
with  a  form  of  legality,  to  fill  the  office  until  the  current  term 
should  expire.  Authority  was  given  to  him  and  other  com- 
missioners to  reform  the  constitution  {rifonnarc  la  cittd\ 
especially  to  create  new  priors  and  their  collcgi.    Then  the 

♦The  brief  account  of  this  tumult  given  by  Gino  Capponi,  then 
living  and  of  the  family  of  the  modern  historian  whom  we  have 
pften  quoted  (in  Muratori  Rev.,  Ital.  Scr.,  p.  1 104  and  onw.),  makes  it 
eviiient:  (i.)  That  the  tumult  was  due  to  what  tiie  parte  Guelfa  had 
done.  A  witness  before  the  i)riors,  who  was  implicated  in  a  riot,  said 
that  many  ammoniti  had  solicited  him  and  others  to  make  a  stir 
(p.  1 1 13).  (2.)  Dissatisfaction  of  a  number  of  trades  under  the  con- 
trol of  the  great  guild  of  wool  made  them  wish  to  get  out  of  this 
siilijcction,  as  having  been  badly  treated  (ibid.).  (.?.)  One  of  the 
gonfaloniers  of  the  companies  charged  Salvestro  dci  Medici  (who  was 
gonfaloniere  of  justice  and  abandoned  his  post  in  June,  i.^yS,  because 
he  could  not  carry  a  measure  ag.iiiist  the  aristocracv  in  the  board  of 
priors  and  their  with  being  at  the  head  of  the  |)lot.  Salves- 

tro confessed  to  the  priors  of  .August  that  he  knew  something  of 
the  designs  of  ammonili  (\\\^).  His  friend  Benedetto  Alberti 
showed  his  sympathy  with  the  rising  at  its  commencement. 


86 


POLITICAL  SCIENCE. 


commissioners  called  three  new  guilds  into  being,  the  first 
consisting  of  tailors,  doublet-makers,  cloth-dressers  and  bar- 
bers ;  the  second,  of  carders  and  dyers  ;  the  third,  of  the pop- 
ulo  miniiio  or  populace.  The  signoria  was  also  reformed  ; 
three  priors  were  to  belong  to  the  highest  guilds,  three  to  the 
next  in  rank,  three  to  the  new  ones  ;  and  the  gonfaloniere  of 
justice,  counting  him  one  of  the  nine  priors,  was  to  be  selected 
in  turn  from  each  of  these  divisions  of  the  people.  A  sqiiitti- 
nio  or  registration  was  held,  as  usual,  by  a  specially  appointed 
committee,  but  the  business  was  left  chiefly  in  the  hands  of 
the  members  of  the  inferior  guilds.  A  third  act  of  the  "  tu- 
mult "  took  place  when  new  priors  Avere  about  to  succeed 
the  old,  but  it  was  repressed  by  the  energy  of  Michel  Lando, 
who,  in  his  brief  rule,  showed  courage  and  moderation. 
This  dosing  scene  cost  the  life  or  goods  of  a  number  of  citi- 
zens condemned  by  judicial  process. 

A  number  of  changes  in  the  government  were  made  at 
this  time.  One  was,  to  abolish  the  new  guild  of  the  lower 
people,  the  twenty-fourth.  Another,  to  give  four  priors  to 
the  great  guilds  and  five  to  the  inferior.  The  council  of  the 
people  was  made  to  consist  of  forty  from  each  quarter,  the 
council  of  the  commune  of  the  same  number  with  ten  grandi 
from  each  quarter.  Provisions  which  had  been  made  for  the 
relief  of  debtors  were  abrogated.  In  short,  the  first  begin- 
nings of  a  reaction  were  already  apparent. 

The  inferior  guilds  were  now  masters  of  the  state,  and  they 
exercised  their  power  against  many  in  condemnations  to 
banishment  or  death.  Among  those  who  suffered  death  was 
Piero  degli  Albizzi,  who  had  been  banished  from  Florence, 
and  now  was  taken  up  on  a  charge  of  conspiracy.  On  the 
other  hand,  two  of  the  chief  citizens  who  had  been  leaders  of 
the  people,  one  of  the  Strozzi  and  one  of  the  Scali,  for  at- 
tempts to  e.xcite  a  sedition,  were  sentenced  to  death  ;  one  dietl, 
the  other  escaped  death  by  flight.  The  upper  guilds  seized 
this  as  a  favorable  time  for  recovering  their  superiority,  and 
a  reform  commission  was  appointed.  The  results  were  the 
annulment  of  two  new  guilds  of  1378,  a  general  rcstora- 


CONSTITUTION  OF  FLORENCE. 


87 


tion  of  men  banished  or  deprived  of  civil  rights  since  the 
tumult  of  that  year,  the  equality  of  the  higher  and  lower 
guilds  in  the  number  of  priors  assigned  to  them,  the  choice 
of  a  gonfaloniere  always  from  a  higher  guild,  and  the  con- 
cession of  a  majority  of  one  to  the  same  guilds  in  the  council 
of  the  people  and  in  several  of  the  standing  boards  (1382). 

The  changes  now  going  on  show  that  the  upper  class  was 
recovering  its  ground.  The  attempt  was  successfully  made 
by  the  aristocracy  to  gain  the  favor  of  the  people ;  and  they 
felt  themselves  strong  enough  even  to  banish  some  of  the 
eminent  men  who  had  leaned  toward  the  popular  side,  such  as 
Salvestro  dei  Medici,  who  was  obliged  to  leave  Florence  for 
five  years  (1383),  and  Benedetto  Alberti,  who,  with  his  house, 
was  disqualified  from  holding  office,  and  was  banished  to  the 
distance  of  a  hundred  miles.  Besides  this,  the  old  weapon 
of  "  ammonzione  "  was  again  used  by  the  less  popular  party. 

^  190. 

Perhaps  the  year  when  Maso  degli  Albizzi  was  drawn  out 
^  .  .  as  gonfaloniere  (139^),  may  be  fi.xcd  on  as  the 
point  of  time  when  the  government  came  per- 
manently into  the  hands  of  the  upper  class,  or  the  ottiuiati. 
To  secure  their  position  they  had  already  diminished  the  share 
of  offices  of  the  lower  guilds  from  one-third  to  one-fourth. 
Now,  by  charges  of  conspiracy,  and  in  various  ways,  in  a  few 
years  the  whole  family  of  the  Alberti  was  ruined.  Lom- 
bardy  was  full  of  banished  men  (Capponi,  ii.,  80)  ;  the  popu- 
lar party  lost  its  great  supports.  Vicri  dei  Medici  was  beg- 
ged to  put  himself  at  the  head  of  the  people,  and  if  he  had 
bc^n  more  ambitious  than  good,  MacchiavcUi  thinks  that  he 
might  have  got  the  government  into  his  hands,  but  he  refused. 
(Comp.  Ammirato,  vol.  ii.,  840,  p.  891.) 

The  ottiuiati,  or  oligarchy,  remained  in  power  under  Maso 
and  Rinaldo  Albizzi  and  Xiccolo  da  U/.zano,  the  statesmen 
of  the  party,  until  1434.  The  state  was  ably  managed  ;  Pisa, 
Cortona,  Leghorn,  were  incorporated  into  the  republic  ;  the 
industries  were  flourisliing,  and  it  was  in  this  century  that 


88 


POLITICAL  SCIENCE. 


the  silk  guild  reached  its  highest  point  of  prosperity.  The 
constitution  in  various  respects  had  become  a  form,  one  may 
say,  a  shell.  There  were  no  longer  disputes  between  upper 
and  lower  guilds,'^  but  rich  and  poor  divided  society.  The 
men  at  the  head  of  affairs  saw,  in  Giovanni  dei  Medici,  one 
who,  on  account  of  his  wealth  and  great  popularity,  might 
prove  a  formidable  rival,  but  he  seems  to  have  been  unam- 
bitious and  prudent,  content  to  be  a  great  merchant  and 
money-lender — the  richest  man  of  Florence,  if  not  of  Italy. 
(Capponi,  ii.,  I  S3-)  His  sons,  however,  Cosimo,  and  Lorenzo, 
the  elder,  had  greater  political  aspirations,  and  it  might  justly 
be  suspected  that  if  they  came  into  active  political  life,  they 
would  pull  the  Albizzi  party  down.  He  died  in  1429, 
recommending  to  his  sons  to  be  always  on  the  people's  side, 
but  not  to  seek  to  lead  the  people,  nor  be  the  heads  of  a 
section,  nor  authors  of  disturbances  in  the  republic.  Niccolo 
da  Uzzano  died  in  1432,  depriving  the  ruling  party  of  its 
wisest  counsellor.  Just  before  the  death  of  Giovanni,  the  tax 
system  was  thoroughly  revised,  yet  so  as  to  place  it  in  the 
power  of  the  reigning  party  to  distress  a  political  adversary 
by  unjust  assessments. t 

§  191- 

The  father  of  Rinaldo  degli  Albizzi,  Maso,  above  spoken 
The  Medici  in  ^f-  ^'''1^  kept  his  place  at  the  head  of  his  party 
and  the  state,  and  had  been  acceptable  to  the 
inferior  class  ;  but  Rinaldo,  although  an  accomplished  man, 
wanted  prudence.  He  felt  that  Cosimo  dei  Medici  could  not 
fail  to  become  an  active  rival,  and  resolved  to  crush  him.  By 
his  influence  the  signoria  cited  Cosimo  before  them  and  put 
him  in  prison.    A  parlamento  was  summoned,  and  a  balia  was 

*  Yet  a  little  before  Giovanni  dei  Medici's  death,  Rinaldo  wanted 
him  to  enter  into  a  plan  to  recliice  tlie  fourteen  lower  guilds  to 
seven. 

f  Comi).  what  von  Ri'iunont  says  of  tlie  cataslo  in  his  T-orenzo  dei 
Medici,  i.,  40  onward  (in  the  tlennan),  and  see  Macchiav.,  b.  iv., 
(iv.,  24). 


CONSTITUTION  OF  FLORENCE. 


89 


constituted,  or  literally  a  large  committee,  with  power  to  re- 
form the  state.  The  piazza  being  surrounded  by  armed  men, 
everything  went  through  without  opposition.  The  balia  (or 
men  of  the  balia)  met  several  times ;  at  the  first  meeting 
Cosimo  was  banished  to  Padua  ;  others  of  his  house  to  other 
places  for  various  terms,  and  the  Medici  were  made  grandi, 
i.  c,  incapable  of  holding  office.  At  another  meeting  of  the 
same  commission,  an  office,  called  the  eight  of  the  guard, 
was  instituted  for  the  purpose  of  preventing  disturbances  of 
the  peace  in  the  city  and  neighborhood,  a  measure  plainly 
pointing  at  the  partisans  of  the  Medici.*  Less  than  a  year 
after  Cosimo's  banishment  a  signoriawas  drawn,  all  the  mem- 
bers of  which  were  favorable  to  him,  the  priors  as  well  as  the 
gonfaloniere.  His  enemies  were  at  a  loss  what  to  do,  and 
did  nothing  to  prevent  what  they  feared— his  return.  A 
parlamento  was  summoned,  a  large  balhi  or  commission  was 
nominated,  and,  being  nearly  all  of  one  mind,  they  not  only 
restored  Cosimo,  but  gratified  their  political  animosities,  and 
provided  for  the  safety  of  their  party  far  more  than  the  Al- 
bizzi  party  had  done.  Seventy-six  of  the  citizens  were 
banished  for  a  term  of  years,  from  ten  downwards,  including 
Rinaldo  Albizzi,  I'alla  Strozzi,  and  other  principal  citizens. 
Some  were  declared  incapable  of  holding  office  for  ten,  some 
for  twenty  years. t  Others  were  made  grandi,  and  thus  ex- 
cluded with  their  posterity  from  office.  But  some  time  after 
the  quiet  produced  by  this  "  reform,"  a  law  was  passed 
taking  away  the  restrictions  imposed  on  the  old  nobles  or 
grandi,  so  that  entrance  was  open  to  them  into  the  offices  of 
the  state.  Yet  this  amounted  to  little,  for,  to  use  the  words 
of  von  Reumont,  "  the  names  of  the  nobles  were  not  put 
into  the  bag  containing  the  list  of  eligible  persons,  and  tliLy 
lost  also  those  [extraordinary  ]  offices  which  had  been  uj)cn 
to  them,  such  as  legations  and  commissions  lor  conductin*' 

o 

*Cavalcanti,  Istor.  Klor.,  b.  i.x.,  ch.  8-17.  'I'his  author  cjivcs  the 
names  and  often  the  occupation  of  tiio  men  of  these  balias.  Some 
of  tliem  l)elon}^o(l  to  the  lowest  guilds. 

f  Cavalcanti,  b.  x.,  10-20. 


90 


POLITICAL  SCIENCE. 


war,  etc.  This  meant  that  the  haughtiness  of  the  old  fami- 
lies was  a  thorn  in  the  eye  of  the  men  of  the  new  family  who 
had  put  no  trust  in  them."  * 

The  balia  which  restored  Cosimo  was  continued  for  five 
years,  and  again  for  the  same  period.  But  the  names  of 
those  only  went  into  the  bag  who  were  either  partisans  of 
the  Medici  or  were  harmless,  for  all  obnoxious  or  suspicious 
persons  had  been  incapacitated  to  exercise  political  power 
for  a  term  of  years  or  for  life.  At  the  end  of  ten  years  after 
Cosimo's  restoration,  in  a  time  of  discontent  with  the  reign- 
ing policy,  another  commission  or  balia  was  given  to  two 
hundred  and  fifty  citizens  to  reform  the  state,  at  which  time 
existing  banishments  were  prolonged,  others  were  added  to 
the  list  of  banished  ones,  others,  two  hundred  and  forty-five  in 
all,  were  disabled  from  holding  office.  Now  also,  as  well  as  in 
1433  just  before  Cosimo's  banishment,  and  in  1434  just  after 
his  restoration,  a  board  of  ten  persons  called  accopiatori  was 
created  to  manage  the  drawings  for  magistrates.  These  per- 
sons, in  1444,  whose  office  lasted  until  a  new  squittinio  should 
take  place,  received  power  to  select  the  magistrates.  "  Thus 
everything  that  the  people  or  the  balia  had  done  was  subject 
to  the  revision  of  those  ten"  (Capponi,  ii.,  282),  men  ready 
for  anything  that  should  be  required  of  them.  So  miserable 
and  contemptible  had  the  constitution  of  Florence  now 
become.  + 

Cosimo  and  Lorenzo  kept  their  places  under  the  forms  of 
an  ejfete  constitution  dishonestly  administered.  Piero,  Lo- 
renzo's son  was  unequal  to'  the  task  of  defending  the  city, 
and  the  Medici  were  expelled  for  eighteen  years  in  1494,  to 
be  restored  by  a  foreign  power. 

The  estimate  of  the  Mediccan  state  given  by  F.  Guicciar- 
diani  in  liis  work  "Del  Reggimcnto  di  Firenzc  "  is  on  the 
whole  so  just  that  we  will  introduce  a  passage  from  it  into 

*  I>oren/.o,  i.,  147. 

fThe  signoiia  following  the  restoration  of  Cosimo  was  chosen 
not  by  lot  but  by  the  voice  of  "  an  enraged  nuiltitudc."  Cavalcanti, 
X.,  9. 


CONSTITUTION  OF  FLORENCE. 


91 


our  pages.*  In  the  dialogue  the  aged  Bernardo  del  Nero 
speaks  thus  :  "It  would  give  us  little  trouble  to  express  in 
brief  what  was  the  nature  of  the  Medicean  state,  for  the 
truth  of  what  Piero  Guicciardini  said  cannot  be  denied,  that 
it  was  a  state  usurped  by  means  of  faction  and  with  force. 
Or  rather,  it  is  necessary  to  confess  that  which,  through  be- 
coming reserve,  perhaps  he  was  not  willing  to  express,  that 
it  was  a  tyrannical  state  ;  and  although  the  city  retained  the 
name,  the  show  and  the  image  of  being  free,  they  had  control 
and  were  masters,  since  the  magistracies  were  given  to  whom 
they  pleased,  and  those  who  held  them  obeyed  their  beck. 
It  is  true,  and  this  I  know  that  you  will  not  deny,  that  their 
tyrannical  rule,  compared  with  that  of  others,  has  been  mild  ; 
for  they  v/ere  not  cruel  and  bloody,  nor  rapacious,  nor  vio- 
lators of  female  chastity  nor  of  the  honor  of  other  men. 
They  were  desirous  and  eager  to  augment  the  power  of  the 
city,  and  did  much  good  and  little  ill  save  what  they  were  led 
into  by  necessity.  They  wished  to  be  masters  of  the  state, 
but  with  all  the  respect  for  civil  order  that  was  possible,  and 
with  humanity  and  moderation.  This  they  did  principally 
from  their  own  natural  impulses,  for  it  cannot  be  denied  that 
they  were  of  good  blood  and  of  noble  mind.  Cosimo  and 
Lorenzo,  being  prudent,  and  having  around  them  always  a 
number  of  wise  counsellors  from  among  the  citizens,  under- 
stood that,'  taking  the  nature  of  their  government  and  the 
condition  of  the  city  into  view,  they  could  scarcely  govern 
otherwise,  and  that  every  means  they  might  have  used  of 
bringing  matters  under  the  control  of  greater  violence  and  of 
blood,— as  we  see  the  course  to  have  been  in  Perugia  and 
liologna — would  at  Florence  have  destroyed  rather  than  in- 
creased their  grandeur." 

This  mild  judgment  is  followed  by  Piero  Capponi's  less  mild, 
but  n(jt  harsh  indictments  against  them,  especi.illy  against 
Lorenzo,  for  interference  in  administering  justice,  for  improper 

^  *  Oprre  inedile,  l-'lor.,  1858,  vol.  ii.  In  a  recent  nnmlu  r  of  tlm 
K(linbur';h  Review  tiiis  passage  is  cilcti,  but  we  IkuI  inserted  it  in  oiu" 
work  a  year  or  more  before. 


92 


POLITICAL  SCIENCE. 


distribution  of  public  honors,  and  for  faults  in  respect  to 
the  preservation  and  augmentation  of  the  state's  dominion. 
Under  the  first  count  he  says  that  they  corrupted  justice  by 
recommending  their  friends  to  be  magistrates  and  judges. 
What  they  did  not  do  directly  their  friends  did.  When  they 
were  silent,  their  friends  guessed  at  their  will.  Especially 
Lorenzo  erred  in  this  respect,  by  filling  the  bag  in  the  selec- 
tion of  commercial  judges  with  the  names  of  his  dependents.* 
Criminal  justice,  he  adds,  was  far  more  tampered  with  in  or- 
der to  screen  the  friends  of  the  government.  The  crimes  of 
men  of  influence  were  not  complained  of,  for  there  was  little 
hope  of  justice.  The  distribution  of  public  honors  was 
shameful,  for  unworthy  ends,  to  unworthy  persons  ;  and  ar- 
bitrary imposts  on  the  enemies  of  the  Medicean  house  were 
made  the  means  of  oppression.  Moreover,  by  means  of  the 
balia  a  great  part  of  the  citizens  were  excluded  from  ofiice  by 
law,  together  with  their  sons  and  descendants  in  perpetuity. 
Public  afi'airs  were  managed  in  the  interests  of  the  house  and 
not  for  the  benefit  of  the  city. 

The  liberty  of  Florence  after  the  expulsion  of  the  Medici  in 
1494  was  short-lived.  The  main  feature  of  the  new  constitu- 
tion was  a  great  council  of  from  eight  hundred  to  one 
thousand,  copied  after  the  government  of  Venice,  composed 
of  persons  at  least  twenty-nine  years  old,  whose  ancestors  or 
they  themselves  had  filled  one  of  the  three  higher  offices. 
The  priors  and  gonfaloniere  with  their  coUcgi  continued.  A 
senate  of  a  much  smaller  number  was  added,  holding  office  for 
six  months.  To  the  great  council  pertained  the  elections  and 
legislation.  For  holding  office,  names  were  proposed  in  the 
council,  and  if  accepted  by  a  majority  they  became  eligible. 
Such  was,  in  its  outlines,  the  constitution  approved  by  Savon- 
arola, and  it  continued  after  his  death  in  substance  until  Piero 

*Thosix(li  mcrcatanzia,  an  old  commercial  court,  to  be  traced 
back  to  a  time  earlier  than  1307.  Tlicse  witii  a  foreigner  and  two 
members  of  the  greater  guiltls  drawn  by  lot  from  the  bags,  constituted 
the  ricorsi,"  a  court  of  ajjpeals,  apparently,  in  commercial  cases. 
Canestrini's  note,  Guicciard.,  op.  ined.,  ii.,  37. 


CONSTITUTION  OF  FLORENCE. 


93 


Soderini  became  gonfaloniere  for  life  in  1502.  At  the  same 
time  the  old  office  of  podesta,  as  we  have  already  seen,  was 
abolished.  Already  other  offices  of  the  oldertime  had  expired 
or  become  empty  names. 

In  1 512  this  constitution  was  overthrown,  the  gonfaloniere 
was  banished  for  life,  and  the  dukedom  of  Florence  was 
founded,  to  be  ruled  over  by  one  of  the  Medicean  family.  It 
was  called  the  grand  duchy  of  Tuscany  in  1 569. 

^  192. 

We  have  devoted  what  may  seem  an  unduly  large  space  to 
EsiimaeeofFiorcn-  constitution  of  Florcncc,  but  such  was  the 
tineconsmufon.  complication  of  external  or  internal  causes  at 
work  in  the  development  of  this  polity,  that  much  more  might 
be  added  if  we  would  fully  explain  every  change  and  show  its 
historical  connections.  Besides  this,  Florence  has  had  such 
an  illustrious  place  in  the  history  of  human  progress  that  few 
modern  polities  are  so  well  worthy  of  being  studied.  Under 
what  form  ought  the  government  of  Florence  to  be  classed  ? 
M.  Thiers  regards  it  as  the  most  democratic  of  ancient  and 
of  modern  times.*  Is  there  any  justice  in  this  opinion  ?  We 
cannot  see  how  a  polity  can  be  called  democratic  where  the 
nobles  and  patricians  wielded  the  principal  power  until  the 
institution  of  the  prima  popolo,  and  even  until  the  government 
of  the  upper  guilds  in  1282.  After  this,  while  the  wealthy 
class  was  contending  against  \\\^  (^rnndi,  and  finally  overcame 
them,  the  lower  guilds  had  no  share  in  power  or  office  until 
the  middle  of  the  fourteenth  century.  And  when,  finally, 
after  137S,  the  lower  guilds  gained  something  like  their 
numerical  importance  for  a  time,  their  supremacy  was  short- 
lived ;  a  faction  of  ottimati  governed  the  state  until  they  were 
obliged  to  give  it  over  to  another  set  of  men  more  popular 
in  the  relations  of  the  governing  family  to  the  people,  but 
equally  oligarchic,  nay,  more  verging  towards  ts-ranny. 
There  seems  to  have  been  but  little  democracy  in  all  this. 

*Capponi,  preface  to  vol.  i. 


94 


POLITICAL  SCIENCE. 


Again,  the  methods  and  theory  of  government  were  not 
those  of  a  democracy.  The  parlanietito  was  indeed  in  theory 
an  assembly  of  the  people,  and  was  the  last  resort  for  the  en- 
actment of  laws  and  for  reforms  in  the  constitutions.  But  the 
parlanicnio,  when  we  know  much  of  its  action,  was  an  assem- 
blage of  persons  in  the  public  piazza,  with  the  understanding 
beforehand  of  carrying  out  the  views  of  a  faction.  Armed 
men  were  on  hand  to  keep  down  opposition.  The  balia  that 
restored  Cosimo  de'  Medici  was  appointed  by  about  three 
hundred  and  fifty  citizens,  all  of  whom  but  four  were  in  favor 
of  his  restoration.  No  enemy  of  the  project  would  have 
dared  to  gainsay  what  this  packed  crowd  determined  to  have 
done.  The  balias  had  certainly  nothing  aristocratical  in  them 
from  1393  onward.  The  lot  contained  a  democratical  element, 
but  the  registration  and  the  bags  looked  just  the  other  way. 

Florence  had  not  only  a  constitution  leaning  towards  aris- 
tocracy and  oligarchy,  but  an  exceeding  ill-balanced  one. 
The  methods  at  different  times  adopted  to  get  rid  of  obnox- 
ious enemies,  as  by  wholesale  banishments  and  confiscations, 
by  temporary  relegation,  by  "  making  men  sit,"  as  the  ex- 
pression was,  or  disqualifying  them  for  office  {victtci'c  a  scdcrc), 
by  conferring  on  them  the  condition  of  :\.  grandc  or  even  an 
arcigrandc,  by  amnionizionc ,  by  depriving  whole  families  of 
civic  rights,  show  what  a  fierce  state  of  parties,  and  what  un- 
told miseries  the  polity  allowed.  The  ostracisms  and  liturgies 
of  Athens  were  nothing  to  the  terrible  ruin  of  families,  the 
exile  and  the  executions  for  political  offences,  that  stain  the 
history  of  Florence.  When  the  Ghibellines  were  driven  away 
the  Guelphs  divided  into  two  factions  just  as  bitter  ;  and  if  the 
Bianchi  had  triumphed  the  Neri  would,  without  question, 
have  felt  their  vengeance. 

Yet  there  is  another  side  to  the  picture.  Through  all  this 
time  of  strife,  industry  prospered  ;  commerce  went  abroad 
far  beyond  the  Alps  ;  bankers  lent  their  funds  to  crusaders 
and  to  kings  ;  art  produced  some  of  the  choicest  of  modern  j 
works;  poetry  was  represented  by  the  greatest  of  medi;eval 
writers.     Can  there  be  a  question  that  the  intensity  of  politi- 


CONSTITUTION  OF  FLORENCE. 


95 


cal  life  gave  a  spring  to  all  the  forms  of  human  activity  ?  The 
strife,  arising  out  of  external  relations  at  first,  was  thus  not 
an  unmixed  evil. 

^  193. 

It  may  not  be  without  advantage,  if,  at  this  point,  we  sum 
Summary  of  rc-  Up,  aS  briefly  as  possible,  the  leading  particulars 

sulls  ill  relation  to  .  .  1       i  • 

aristocracy.  relative  to  aristocracy,  whether  it  appears  as  a 

governing  class  in  the  state  with  recognized  political  rights, 
or  occupies  more  indefinite  ground  as  a  group  of  families  in 
possession  of  honors,  and  of  the  means  of  defending  their 
position  against  attacks  without  having  a  recognized  consti- 
tutional standing. 

The  origin  of  a  species  of  aristocracy  which  is  among  the 
very  oldest,  is  that  hereditary  division  and  sepa- 
ration of  employments  which  we  call  caste.  The 
military  class  and  the  teachers  of  religion,  if  they  become 
hereditary,  must  engross  the  power  of  society  in  their  hands, 
as  well  the  intelligence  and  power  of  combination  as  the 
force.  If  both  are  strong,  and  if  they  co-operate,  they  form 
an  upper  class  or  upper  classes  which  are  strong  in  themselves 
and  strong  by  the  superadded  help  of  religious  obligations. 

There  must  have  been  a  time  when  these  classes  began  to 
exist,  and  a  time  during  which  they  were  comparatively 
weak.  The  tendency  to  transmit  everything  acquired  by 
personal  exertions  in  a  hereditary  line  and,  in  the  case  of 
the  military  class,  the  advantages  furnished  by  their  superior 
means  of  acquisition  would  soon  place  them  above  those  who 
were  once  their  equals.  The  rise  of  the  Brahmin  caste,  which 
is  unknown  to  the  earlier  vedas,  is  due  to  the  copious  liturgies, 
to  the  almost  magical  power  attributed  to  prayer,  and  the 
necessity  which  sprang  up,  at  length,  of  a  special  education 
for  understanding  the  sacred  books— causes  which  shut  out 
the  greater  part  of  the  people  from  an  active,  independent 
part  in  worship.  Wlicllicr  the  tribes  at  Athens  of  prchistor- 
ical  origin,  which  continued  until  the  time  of  Clisthenes  (510 
R.C.),  and  point  I)y  their  names  to  diversity  of  occupation, 
two  of  which  were  that  of  hoplites  or  guards,  and  i)erli.ips  that 


96 


POLITICAL  SCIENCE. 


of  priests,  were  caste-like  divisions  of  the  people  may  well 
be  doubted.  The  small  importance  of  the  priests  afterwards, 
together  with  the  absence  of  priestly  incorporations,  and, 
indeed,  of  any  foundation  for  castes  whatever,  make  such  an 
early  form  of  society  in  the  Athenian  state  improbable.  The 
'institution  of  the  Druids  was  a  similar  division  in  the  direc- 
tion of  caste. 

Another  common  origin  of  a  nobility  is  conquest,  whether 
of  one  cognate  tribe  by  another,  or  of  a  foreign  people  by  a 
conquering  soldiery.  With  a  conquest  comes  assignation 
of  lands,  the  old  tenants  being  retained  on  the  soil  as  laborers, 
or  allowed  to  keep  a  part  of  their  property.  All  the  con- 
quests by  Germanic  tribes  in  Roman  Europe  brought  acqui- 
sitions of  lands,  at  least  to  the  leaders,  and  but  for  this  the 
feudal  system  could  not  have  arisen.  Among  the  Franks  at 
the  time  of  their  settlements  in  Gaul,  no  nobility  can  be 
traced,  unless  the  king's  companions,  the  antrnstioncs,  can  be 
called  such.  But  in  process  of  time  a  feudal  nobility  arose 
in  France,  through  gifts  of  land  and  local  governments,  which 
was  one  of  the  most  splendid  in  Europe. 

The  position  of  such  landholders,  with  the  tradition  in 
families  of  the  primitive  occupation  of  their  martial  ancestors, 
the  sports  of  hunting,  and  the  ennui  of  a  life  on  their  estates, 
keep  up  the  martial  feeling,  and  so  long  as  they  are  true  to 
their  origin,  and  a  field  is  open,  they  preserve  their  power. 

An  illustrious  birth  is  another  source  of  aristocracy— that 
is,  a  birth  which  is  to  be  traced  back  to  heroic  ancestors,  or 
is  mythically  connected  with  the  earliest  fables  of  the  race. 
This,  indeed,  of  itself,  without  the  possession  of  land  or  of 
other  sources  of  supply,  will  avail  nothing  ;  but  the  respect 
paid  to  historic  ancestry  enables  a  family,  even  when  driven 
into  e.xilc,  to  stand  on  a  level  with  the  foremost,  and  to  use 
the  means  for  securing  a  permanent  position.  It  is  remark- 
able in  the  early  traditions  of  Attica  how  illustrious  exiles 
were  welcomed  there,  and  even  rose  to  fill  the  kingly  office. 
In  modern  luirope,  especially  in  Austria,  numbers  of  foreign- 
ers have  occupied  important  places  among  the  nobility  on 


CONSTITUTION  OF  FLORENCE. 


97 


account  of  their  condition  at  home,  and  owing  to  services 
rendered  to  their  adopted  countries. 

Wealth  acquired  by  commerce  or  manufactures  is  another 
source  of  hereditary  aristocracy.  We  have  seen  how,  in 
trading  states  like  Carthage  and  Venice,  the  upper  class  is 
thus  for  the  most  part  constituted,  although  there  may  be  a 
sprinkling  of  noble  families  in  younger  branches  among 
them.  This  may  be  an  origin  of  a  town  "  patriciate,"  but 
rarely  are  such  families  as  have  grown  rich  by  trade  admitted 
to  an  equality  with  the  old  nobility  of  a  country.  A  few 
instances  may  be  cited  like  the  Fuggers  of  Germany,  the 
Mcdicis  of  Florence,  and  a  number  of  others,  and  a  few  in 
England  in  modern  times,  but  in  general  the  spirit  of  a  he- 
reditary landholding  aristocracy  looks  down  on  trade  and 
manufactures  as  mean  employments. 

We  can  only  point  to  other  sources  of  national  aristocracy 
which  play  a  subordinate  part,  as  the  favor  of  kings  to  cour- 
tiers not  noble  at  first,  distinction  at  the  bar,  in  military  ser- 
vice, even  in  literature.  England,  which  has  in  some  respects 
ways  of  replenishing  its  aristocracy  peculiar  to  itself,  will  af- 
ford many  illustrations  of  such  ennoblement. 

By  no  means  all  nations  or  races  have  a  nobility  proper, 
still  less  a  nobility  with  titles,  an  aristocratic  hierarchy.  At 
the  first  all  distinction  was  personal  or  grounded  on  what  an 
ancestor  had  done  ;  next  was  distinction  arising  from  larger 
possessions  ;  then  titles  were  introduced.  The  Jews  had  no 
nobility  proper,  they  were  as  a  whole  people  a  kingdom  of 
priests,  a  holy  nation,  and  brethren  with  equal  rights,  religious 
and  civil.  The  small  influence  of  the  high-priest  and  upper 
priests  show  that  the  hierarchy  had  no  great  political  power. 
The  inalienability  and  reversibility  of  lands  belonging  to  a 
family  would  have  prevented  an  accumulation  of  that  kind  of 
property  in  the  same  hands  for  a  long  period,  if  the  law  had 
been  strictly  observed.  But  as  we  have  in  the  scriptures  a 
woe  denounced  on  those  who  join  field  to  field,  and  a  wealthy 
class  appears  by  the  side  of  the  poor,  the  institutions  must 
have  become  more  or  less  disregarded.  And  the  frccjuent  men- 
VOI-.  II.— 7 


98  POLITICAL  SCIENCE. 

tion  of  princes  in  the  Scriptures  shows  that  a  superior  class — 
althougli  not  a  hereditary  one,  but  rather  a  class  of  officers  civil 
and  military — existed,  as  indeed  was  inevitable.  On  the  whole, 
however,  nothing  shows  that  there  was  a  hereditary  Hebrew 
nobility,  nor  an  upper  class  to  which  any  one  might  not  attain. 

The  Romans  had  a  class  with  special  privileges  by  birth, 
heads  of  gentes  and  separated  off  with  their  gentes,  by  civil 
and  religious  privileges,  from  new-comers.  Yet,  at  length,  this 
patrician  class  yields  to  a  nobility  of  the  best  families,  who 
managed  to  keep  office  and  its  opportunities  in  their  hands. 
It  was  not  until  the  fourth  century  of  our  era  that  titles,  on 
account  of  public  employments,  laid  a  kind  of  foundation  for 
the  nobility  of  the  holders  of  office. 

In  other  nations  hereditary  enjoyment  of  office  or  of  cer- 
^  tain  offices  arose  during  the  history  of  a  people, 

of  which  instances  have  been  given  already. 

A  nobility  with  titles,  such  as  we  now  find  all  over  Europe, 
show  their  origin  by  these  very  titles.  They  were  subordi- 
nates of  the  suzerains  in  the  administration,  in  the  counties 
(graf,  comes,  vicecomes,  ealdorman,  etc.),  or  on  the  marches 
(marchio,  markgraf,  marquis),  or  at  the  palace  where  the 
king's  justice  was  administered  (comes  palatii,  pfalzgraf,  pal- 
grave),  or  as  leaders  of  an  army  and  governors  of  a  province 
(dux,  duke,  herzog),  and  so  on.  These  titles  serve  to  pro- 
long a  distinction  which  would  not  otherwise  be  so  much 
felt.  The  nobleman  would,  but  for  them,  stand  nearly  on  a 
level  with  other  wealthy  owners  of  the  soil. 

It  is  natural  in  monarchies  and  aristocracies  that  the  lead- 
ing class  should  have  not  only  a  leading  share  in  legislation, 
but  also  that  they  should  form  a  legislative  body  by  them- 
selves. All  the  governments  of  the  middle  ages  were  con- 
structed on  the  i)rinciplc  of  separate  houses  of  nobles,  clergy, 
burghers,  and,  though  rarely,  peasants. 

This  share  in  legislation  brings  us  to  the  efficiency  of  an 
Emcicncyofano-  aristocracy  in  different  polities.  In  a  despot- 
ism,  the  principle  of  the  j^olity  requires  equality 
of  subordination  to  the  ruler  and  his  advisers.     But  a  landed 


CONSTITUTION  OF  FLORENCE. 


99 


aristocracy  is  a  breakwater  against  despotism,  even  if  there 
is  no  middle  class  as  yet  in  existence  to  join  them.  If  they 
are  alone,  they  cannot  generally  make  head  against  a  tyran- 
nical gov-^ernment ;  but  if  there  is  a  people,  this  may  be  within 
the  power  of  the  two  classes  united.  In  a  limited  or  mi.xed 
monarchy  a  nobility  has  been  thought  to  be  a  kind  of  media- 
ting power  between  the  throne  and  the  common  mass  of  peo- 
ple. There  is  some  truth  in  this,  where  the  upper  class  keeps 
its  independence  and  is  sure  of  its  position  against  democratic 
violence.  The  barons  of  England  were  not  content  with 
wresting  from  King  John  privileges  for  themselves,  but  in- 
cluded all  free  Englishmen  ;  and  the  barons  in  the  times  of 
Henry  III.  called  the  representatives  of  shires  with  those  of 
towns,  to  parliament.  There  has  always  been  a  party  in  the 
nobility  against  rotten  boroughs,  and  in  favor  of  extending 
suffrage.  But  in  other  countries  it  took  a  great  while  to 
approach  the  position  where  a  large  number  of  the  English 
nobility  stood  even  in  the  fourteenth  century. 

An  aristocracy  in  a  republic  as  it  is  called,  that  is,  where 
there  is  nothing  higher  than  they  are,  has  almost  always  been 
a  harsh  and  haughty,  or  a  divided  order.  Nowhere  has  aris- 
tocracy, whether  titled  or  untitled,  coalesced  with  a  strong 
democracy,  but  the  two  orders  have  quarrelled,  and  the  aris- 
tocracy has  been  divided  within  itself,  one  part  holding  with 
the  people.  The  result  was,  as  we  saw  in  Rome,  in  the  Greek 
and  the  Italian  aristocracies,  a  tyranny  or  a  democracy  pre- 
dominant. If  the  pride  of  a  governing  order  would  permit 
them  to  bring  within  the  circle  of  their  privileges  all  among 
the  commons  who  distinguished  themselves  by  great  achieve- 
ments, wealth  or  talents,  they  might  keep  their  place,  al- 
though they  might  have  to  modify  their  spirit.  But  a  gov- 
ernment of  an  aristocracy  is  so  incapable  of  union,  so  unequal 
to  suit  itself  to  the  effects  of  changes  in  property  which  time 
brings  with  it,  so  narrow  often  in  the  views  which  circulate 
among  its  members,  that  it  seems,  for  more  reasons  than  one, 
as  we  have  had  occasion  to  say  before,  to  be  the  weakest  and 
most  uncertain  of  all  governments. 


lOO 


POLITICAL  SCIENCE. 


The  British  aristocracy  has  been  made  to  fit  into  the  system 
of  poHty  in  a  very  wise  manner.  In  the  first  place,  there  is  no 
broad  Hne  separating  between  the  nobility  and  the  common 
people.  The  knights  and  baronets,  and  the  higher  aristocracy, 
have  the  right  of  marrying  into  families  of  commoners,  against 
which  the  German  laws  of  ebenburtigkcit  draw  a  strict  line, 
and  the  younger  branches  of  titled  families  are  finally  merged 
in  the  people  ;  while  yet  there  is  a  certain  healthy  stimulus 
from  the  consciousness  of  a  respectable  birth,  preventing  them 
from  leading  a  dependent  or  a  listless  life.  These  are  so  many 
pathways  over  a  chasm  which  the  aristocracies  in  other  coun- 
tries have  not  been  willing,  if  able,  to  bridge.  Then,  again, 
the  British  system  is  a  wise  one,  as  far  as  relates  to  supplying 
new  recruits  to  the  aristocracy  and  the  peerage.  Without 
being  intended  as  a  bribe,  this  way  of  creating  new  peers  se- 
cures the  support  of  the  government  by  new  men  representing 
a  fresh  class  in  society.  The  old  families  must  continually 
become  fewer,  not  only  for  the  reasons  which  diminish  the 
number  of  families  of  an  average  respectability  on  the  male 
or  on  botli  sides,  but  because  their  position  supplies  them 
with  few  motives  to  put  a  check  on  self-indulgence.  They 
have  in  general,  also,  more  stagnation  of  intellect  than  fami- 
lies under  the  influence  of  a  desire  to  rise.  Probably  a  peer- 
age descending  in  the  male  line,  if  unreplenished,  would  in  a 
few  centuries  almost  run  out. 

Whether,  in  the  future,  hereditary  aristocracies  can  main- 
tain themselves,  when  so  many  men  of  intelligence  and  wealth 
do  not  share  their  privileges,  is  very  doubtful.  And  it  is 
certain  that  the  feeling  of  equality  of  rights,  running,  as  it  is 
apt  to  do  from  the  sphere  of  private  into  that  of  political  rights, 
will  oppose  all  institutions  which  give  a  few  men  a  special  and 
exceptional  power — not  as  representatives,  but  as  a  privileged 
hereditary  class.  But  of  this  we  intend  to  speak  under  the 
head  of  revolutions  in  government.  Whether  the  place  of  a 
hereditary  peerage  can  be  supplied  by  a  house  of  illustrious 
men,  selected  on  account  of  their  wisdom  or  distinguished 
services,  without  reference  to  birth,  and  cither  elected  by  the 


CONSTITUTION  OF  FLORENCE.  lOI 

country  or  named  by  some  nominating  power,  or  in  part,  at 
least,  open  to  certain  men  who  have  filled  high  stations,  is  dis- 
cussed in  another  place.  223.) 

This,  however,  seems  certain,  that  no  laws  which  keep 
landed  property  in  a  family,  or  restrict  marriage  between  the 
orders  of  society  can  long  accomplish  the  end  for  which  they 
are  enacted — that  is,  the  end  of  keeping  their  blood  pure  and 
preventing  such  property  from  passing  out  of  their  hands. 
When  a  country  feels  that  such  institutions  are  intended  to 
prevent  the  natural  influences  of  wealth  acquired  by  industry 
and  of  superior  untitled  intelligence  ;  when  they  are  regarded 
as  a  support  of  undeserved  hereditary  rights,  which  in  them- 
selves imply  merit  and  intelligence,  the  fall  of  a  peerage  with 
legislative  rights  is  not  far  off.  Whether  the  nobility  fall  or 
not,  its  control  in  politics  must  cease. 

Whether  a  municipal  town  under  the  supremacy  of  national 
law,  yet  having  some  self-government,  may  not  have  an  upper 
class  with  somewhat  more  of  privilege  than  the  body  of  the 
inhabitants,  without  falling  into  the  evils  to  which  small  states, 
like  many  Greek  states,  Milan,  Florence,  and  other  city-states 
have  been  subject,  is  a  question  of  some  interest.  Certain  it 
is  that  those  towns  of  Europe,  in  the  middle  ages,  which  con- 
tained such  a  class  and  yet  were  subject  to  a  national  or  other 
considerable  feudal  power,  were  not  in  a  condition  to  fall  into 
such  evils.  And  yet,  in  their  origin  and  through  their  early 
growth,  they  had  the  same  general  development  with  Milan, 
Florence,  and  many  Italian  cities.  It  is  easy  to  see  from  the 
sketch  of  the  Florentine  constitution  how  the  larger  part  of 
the  miseries  aud  faults  of  the  republic  grew  out  of  its  practi- 
cal independence.  But  we  cannot  take  up  the  consideration 
of  such  towns  and  their  civil  order  until  we  come  to  treat  of 
municipal  government  together  with  centralization  and  dis- 
tribution of  power  by  themselves. 


CHAPTER  VI. 

DEMOCRACY  AND  DEMOCRACIES. 
^  194. 

We  understand  by  democracy  the  polity  in  which  the 
people  or  community,  as  an  organized  whole,  has  the  chief 
power  in  its  hands,  and  can  through  its  agents  manage  the 
government  for  what  seems  to  it  to  be  its  welfare.  The  doc- 
trine that  all  power  is  ultimately  derived  from  the  community 
may  be  consistent  with  the  choice  of  a  life-long  tyrant  or  a 
hereditary  line  of  kings  ;  but  the  transfer  of  power  to  an 
authority  like  either  of  these  destroys  the  democracy  itself, 
even  if  the  tyrant  or  the  king  administers  affairs  for  the  gene- 
ral good  and  not  for  his  own  separate  interests.  On  the 
other  hand,  when  there  exists  a  clearly  defined  democracy, 
the  welfare  of  the  lower  class,  or  of  a  party  or  of  a  section  of 
the  country  may  be  aimed  at  by  the  government,  to  the  injury 
of  the  country  as  a  whole,  without  putting  an  end  to  the  democ- 
racy.   The  form  determines  its  nature,  the  spirit  its  quality. 

Again,  we  may  doubt  whether  a  polity  deserves  the  name 
of  a  democracy,  when  a  considerable  number  of  citizens  are 
excluded  from  political  rights.  One  case  of  this  kind  we 
have  considered — that  where  a  large  body  of  slaves  exists 
and  the  active  citizens  do  not  amount  to  half  their  number. 
The  polity  would  be  seriously  affected  if  they  should  be  set 
free  and  receive  civic  rights.  It  would  then  be  a  democracy 
indeed,  but  would  it  be  such  if  they  remained  in  servitude? 
The  ancients,  where  slaves  were  found  under  every  form  of 
polity,  did  not  count  them  in  at  all,  as  changing  the  forms  of 
states,  any  more  than  children  and  women.  They  were  in  all 
polities  a  caput  viortiiiiui,  and  did  not  aftcct  the  differences 
between  one  polity  and  another. 


DEMOCRACY  AND  DEMOCRACIES. 


It  may  be  asked  again  whether  that  be  a  democracy  where 
restrictions  on  the  right  of  suffrage  or  the  right  of  holding 
office  confine  the  actual  control  of  affairs  to  a  few  hands. 
Here  we  refer  to  political  restrictions,  because  there  may  be, 
there  always  is,  a  very  great  majority  of  citizens  who  have  no 
chance  in  their  whole  life  of  holding  office.  In  regard  to  suf- 
frage, it  may  be  said  that  the  more  it  excludes  from  office  or 
from  the  power  of  choosing  others,  the  more  it  approaches  to 
aristocracy  ;  but  so  long  as  the  qualification  for  active  citizen- 
ship can  be  overcome  by  thrift  or  intelligence,  and  actually  ex- 
cludes a  few  of  the  whole  only,  so  long  the  democracy  is  un- 
affected either  in  its  form  or  its  spirit  :  in  its  form,  because  no 
perinaneiit  line  of  birth  or  of  any  other  personal  property  is 
drawn  ;  in  its  spirit,  because  the  intelligent  class  of  society 
can  and  must  perceive  that  what  is  best  for  all  is  best  for 
them,  while  a  great  mass  of  voters  without  property  or  intel- 
ligence can  only  be  led  by  demagogues  who  regard  the  true 
interests  of  neither  portion  of  the  community. 

And  hence,  among  the  variety  of  forms  that  may  be  con- 
ceived of,  we  may  doubt  whether  certain  ones  belong  to 
aristocracies  or  to  democracies  ;  we  may  call  a  polity  a  very 
mild  type  of  aristocracy,  or  a  democracy  with  aristocratic 
leanings.  But  this  is  inevitable,  for  while  in  the  material 
world  nature  has  definite,  almost  unchangeable  species,  in  the 
moral  and  political  spheres  there  is  no  such  fixity. 

^  195- 

The  size  of  a  democratic  state  has  nothing  to  do  with  its 
Small  and  Liri-c  "'iturc  ;  and  yct,  in  order  that  a  large  one  may 
democratic  sMtcs.  ^^^^  ^j^^  idea,  the  principle  of  representa- 
tion must  be  introduced  into  it,  and  thus  a  most  important 
difference  arises  between  two  types  of  this  polity.  The  early 
states  being  small,  and  those  around  the  Mediterranean  being 
gathered  chiefly  within  walls  for  the  purposes  of  defence,  the 
democracies,  when  their  era  came,  had  no  need  of  a  repre- 
sentative system.  Their  size  made  the  meeting  of  the  citi- 
zens in  assemblies  an  easy  thing,  and  the  political  habits  thus 


I04 


POLITICAL  SCIENXE. 


generated  would  have  found  no  satisfaction  in  entrusting 
others  with  the  power  of  ultimate  decision  on  political  ques- 
tions. There  is  a  good  deal  to  be  said  in  favor  of  the  educa- 
tion furnished  by  the  old  assemblies  of  the  people,  by  their 
active  co-operation  in  politics  and  judicial  afiairs,  by  their 
responsibility  in  person  for  the  public  welfare,  by  their  train- 
ing through  the  eye  and  the  ear  on  the  pnyx  and  in  the  di- 
castery,  rather  than  by  hearing  meagre  reports  of  what  per- 
sons supposed  to  be  wiser  than  they  had  done  for  them. 
The  persons  who  could  listen  with  pleasure  to  the  orations 
of  Demosthenes  before  the  people,  or  to  his  and  the  other 
leading  Athenian  orations  in  public  and  private  suits — they 
for  whom  the  compact  pleas  of  Isaeus  on  questions  of  inheri- 
tance were  written,  must  have  had  an  education  superior  in 
some  important  respects  to  any  which  modern  times  afford. 
I  ask  myself  while  writing  these  words  in  a  city  of  a  free  re- 
public, where  there  are  some  twelve  thousand  qualified  voters, 
whether  our  modern  system,  which  entrusts  public  business 
to  others,  trains  up  men  as  shrewd,  as  interested  in  public 
affairs,  as  capable  of  entering  into  complicated  arguments  on 
cases  of  law  as  the  Athenians  seem  to  have  been,  and  the 
answer  must  be  in  the  negative.  And  yet  there  are  probably 
three  times  as  many  able  to  read  and  write  in  this  modern 
city  of  smaller  size  than  there  were  among  the  twenty  thou- 
sand citizens  of  Athens.  The  advantages  then  are  not  all  on 
one  side.  In  the  change  from  a  city-state  to  a  common- 
wealth of  great  extent,  we  sacrifice  something  while  we  gain 
much.  What  we  sacrifice  has  already  been  hinted  at.  We 
lose  our  interest  in  political  life  and  a  certain  active  patriotism 
which  loves  the  state  for  itself  and  not  for  its  benefits  ;  we 
lose  to  a  considerable  extent  our  sense  of  responsibility  as 
citizens  ;  we  lose  our  political  training  ;  we  lose  our  relative 
value  as  political  units.  What  is  a  vote  worth,  subjectively 
considered,  when  it  is  one  of  a  million,  compared  to  a  vote 
in  a  little  republic  of  ten  or  twenty  thousand  citizens.  The 
mass  of  our  political  equ.als  contracts  the  bulk  of  each  of  us  in 
a  great  democracy  ;  hence,  multitudes  will  not  go  to  the  polls 


DEMOCRACY  AND  DEMOCRACIES,  I05 

in  this  country,  because  a  vote  more  or  less  among  so  many 
will  be  of  no  account. 

It  ought  to  be  said,  however,  that  these  advantages  of 
unrepresented  democracies  were  counterbalanced  by  great 
evils.  In  the  first  place,  slaves  and  citizens  seemed  both'  to 
be  necessary  in  the  ancient  system.  The  greater  part  of  the 
industrial  classes  in  a  city  democracy  must  have  been  almost 
exclusively  devoted  to  labors  which  gave  no  training  to  the 
mind.  Out  of  five  men  addicted  to  labor,  four  were  inca- 
pacitated to  exercise  political  rights,  the  remaining  one-fifth 
comprehended  the  intelligence  and  breadth  of  view  of  the 
whole.  How  to  secure  a  government  against  immense  masses 
of  ignorant  citizens  would  have  been  a  great — nay,  an  unsolv- 
able  problem.  Further,  the  close  contiguity  of  men  in  a  city- 
state  gave  room  for  combinations  and  conspiracies,  which 
might  be  aided  from  abroad  ;  to  clubs  for  mutual  assistance 
in  getting  office,  to  factions  leading  to  tyranny  or  intestine 
war.  And  again,  the  intense  excitements  of  the  assembly 
were  often  such  as  we  have  no  conception  of  in  modern  times  ; 
the  nearest  approach  to  them  is  found  in  municipal  assem- 
blies where  taxes  are  to  be  voted,  or  in  elections  for  munici- 
pal officers,  when  there  are  strong  parties  formed  for  some 
temporary  purpose.  These,  however,  arc  nothing  compared 
with  the  political  agitations  of  ancient  city-states.  On  no 
arena  in  modern  states  can  oratory  excite  to  such  a  de- 
gree as  it  did  in  the  little  ancient  republic.  Nowhere  are 
examples  to  be  found  of  suspicion,  hatred,  lawlessness  so  ex- 
treme. 

With  the  strong  interest  in  the  state  and  in  political  life, 
the  desire  would  grow  to  have  a  share  in  public  office,  at 
least  in  these  forms  of  government  where  office  was  open  to 
all.  In  a  large  state  there  will  be  office-seekers,  but  the  ratio 
of  places  to  citizens  is  much  less  than  in  a  small  one.  It  is 
this  desire  that  especially  recommended  the  lot  at  Athens  and 
in  other  extreme  democracies,  as  Aristotle  remarks;  and  this 
may  have  led  to  the  great  multiplication  of  offices  for  which 
Athens  was  remarkable. 


io6 


POLITICAL  SCIENCE, 


Again,  the  sway  of  the  demagogue  in  city-states  was  some- 
what different  from  the  influence  of  the  same 

Demagogues. 

persons  in  a  democracy  of  large  extent,  and 
was  also  somewhat  greater.  In  the  city-democracy  it  was 
more  a  personal  power,  sometimes  so  great  in  the  worst  times 
that  tyrants  grew  out  of  this  class.  Demagogues  arise, 
says  Aristotle  (Pol.,  vi.,  or  iv.,  4,  §  4),  "  when  the  resolutions 
of  the  demus  {i.  e.,  the  psephismata)  have  force  and  not  the 
law.  And  this  is  owing  to  the  demagogues  who  do  not 
appear  in  democracies  where  the  law  reigns,  but  where  the 
best  citizens  are  in  authority. — The  dciniis,  being  a  monarch, 
seeks  to  play  the  monarch  when  it  is  not  governed  by  law, 
and  becomes  despotical,  so  that  flatterers  are  held  in  honor. 
And  such  a  people  is  analogous  to  tyranny  among  the  kinds 
of  monarchies  ;  both  also  have  the  same  character,  both  are 
despotical  over  the  better  class."  He  then  goes  on  to  re- 
mark on  the  resemblance  between  the  flatterer  and  the  dema- 
gogue, and  accounts  for  the  fact  that  pscpJiisiiintn  and  not 
laws  are  in  force  in  demagogical  republics,  by  the  dema- 
gogues becoming  great  when  the  demus  has  power,  and  when 
they  (the  demagogues)  shape  the  opinions  of  the  people, 
referring  everything  to  them  in  name,  but  in  reality  telling 
them  what  to  do. 

In  the  ancient  city-states  the  demagogues  were  numerous, 
and  as  each  sought  to  have  the  ear  of  the  lower  people,  they 
came  into  collision.  Their  collisions  reached  their  head  in 
accusations  of  each  other  before  the  assembly  or  before  the 
courts.  This,  in  fact,  was  the  safety  of  the  people  in  particu- 
lar instances,  but  the  institutions  kept  the  habit  of  demagogy 
alive.  In  large  states  democratically  governed,  the  dema- 
gogue, in  order  that  he  may  gain  his  ends,  has  need  to  com- 
bine with  others  ;  the  sphere  is  too  large  for  any  one  to  fill 
by  mere  personal  power.  The  demagogues  in  modern  mu- 
nicipalities resemble  those  described  by  Aristotle,  and  may 
be  quite  as  mischievous  ;  but  even  there  combinations  are 
necessary.  Then  again,  the  modern  constitutions  are  some- 
what of  an  obstacle  in  the  demagogues'  ways.    All  agree  that 


DEMOCRACY  AND  DEMOCRACIES. 


107 


law  must  govern,  and  cannot  be  made  to  suit  the  temporary 
will  of  the  people.  And  as  to  the  making  of  the  laws  them- 
selves, there  is  less  free  room  for  demagogues  to  move  in, 
since  the  representative  system  (as  well  as  written  constitu- 
tions) has  put  difficulties  in  their  way,  as  we  shall  presently 
see. 

^  196. 

There  are  three  moderating  principles  in  democratic  states 
Moder:,ting  princi-  they  arc  constituted  in  modern  times  :  a  con- 
pies  in  democracy,  gtitutiott,  a  representative  system,  and  some- 
times a  limitation  of  the  suffrage.  The  first  and  the  last  of 
these  may  be  introduced  into  the  framework  of  a  city  democ- 
racy ;  but  the  safeguards  against  change  there  are  few,  and 
those  arising  from  extent  of  territory  and  difference  of  local 
interests  arc  wanting.  The  last  of  the  three,  or  a  limited  suf- 
frage, few  city-states,  without  a  strong  oligarchy,  could 
long  retain  ;  for  the  people,  being  the  majority  in  number 
and  able  to  unite  their  ft)rccs,  could  gain  political  power 
much  more  easily  than  when  they  are  dispersed  over  a  wide 
country. 

I.  A  constitution  contains  the  most  important  principles 
of  government,  and  defines  individual  ritrhts 

A  conslilulion.  .  ,      ,  .  . 

With  the  expressed  view  of  guarding  them  against 
change.  They  are  generally  guarded  in  such  a  way  that, 
unHke  ordinary  laws,  the  will  of  an  existing  majority  is  not 
competent  to  alter  them.  It  was  a  safeguard  of  a  framework 
of  government  that,  with  the  other  laws,  it  was  attributed  to 
some  mythic  law-giver,  or  had  the  sanction  of  divine  authority, 
as  of  the  Delphic  oracle  in  Greece  ;  but  when  a  change  of  so- 
cial habits  and  a  loss  of  faith  in  the  religion  of  the  country 
came  on,  this  awe  ceased.  The  feeling  of  power,  when  the 
act  follows  the  will  at  once,  is  uncontrollable.  Athens  was 
by  no  means  one  of  the  worst  democracies,  yet  the  people 
on  one  famous  occasion,  under  an  oligarchic  influence,  cried 
out  that  "  it  was  outrageous  K  Ihc  (fcmus  should  not  be  allowed 
to  do  what  it  pleased."    And  the  parly  that  wished  law 


io8 


POLITICAL  SCIENCE. 


and  righteousness  *  to  have  its  course  was  overawed  and  de- 
feated. 

The  forms  in  the  way  of  altering  a  constitution  are  the  best 
sedative  for  an  over-excited  state  of  the  popular  mind.  It 
may  be  said,  indeed,  that  two-thirds,  or  any  other  number 
which  admits  the  possibility  of  change,  is  unjust,  as  blocking 
the  action  of  a  people  by  a  small  minority.  It  is  remarkable, 
however,  how  small  a  weight  this  complaint  has  in  our  coun- 
try, where  the  rights  of  the  majority,  and  the  rights  of  all  to 
suffrage,  are  generally  admitted.  No  one  among  us,  unless 
a  fanatic,  believes  in  any  right  to  alter  the  constitution  of  a 
state  or  the  country  whenever  a  majority  demand  it.  On  the 
other  hand,  the  reasons  which  recommend  a  constitution 
make  it  necessary  that  a  certain  permanence  should  be  given 
to  this  instrument  beyond  that  which  ordinary  laws  or  acts 
need,  because  all  calculations  for  the  future  depend  on  such 
stability.  It  is,  therefore,  an  act  of  self-preservation  for  a  so- 
ciety to  make  a  constitution  somewhat  difficult  to  alter.  The 
city-states  felt  this,  yet  had  no  effectual  provision  against 
change  within  their  reach. 

2.  The  representative  system.  In  addition  to  the  remarks 
made  in  another  place,  we  say  here  that  the  ob- 

KepresciUatlons.       .  .        ,    ,.,  .  ,  ,  .  ... 

ject  of  a  deliberative  law-making  assembling  is 
to  find  out  first  of  all  what  is  the  highest  good,  within  the 
reach  of  political  measures,  for  a  whole  community,  and  not 
what  will  suit  the  greatest  number  of  constituents.  The  dele- 
gates are  sent  to  advise  with  one  another,  and  are  not,  in  the 
proper  sense,  delegates  of  parts  or  of  parties,  but  belong  all 
to  the  whole  country  ;  so  that,  if  they  were  chosen  by  a  small 
aristocracy,  it  would  be  a  crime  to  consult  the  interests  of 
that  aristocracy  rather  than  the  wants  of  the  whole  commu- 
nity. It  is  the  whole,  the  organized  community,  the  political 
body,  which  appears  in  the  halls  of  legislatures.  But  as  the 
political  body  consists  of  parts,  each  of  them  having  interests 

*  I  write  tliis,  aware  what  an  eminent  historian  has  said  to  the  con- 
trary. 


DEMOCRACY  AND  DEMOCRACIES. 


109 


and  wants  of  its  own,  which  may  not  be  inconsistent  with 
those  of  the  greater  whole,  here  a  new  duty  comes  before  the 
representative  assembly,  and  one  just  as  binding  on  one  part  or 
one  interest  of  a  country  as  on  another.  Of  course,  interests 
may  clash,  and  men  will  be  one-sided  and  selfish  ;  but  there 
is  no  doubt  what  the  function  of  the  legislator  is.  Just  at  this 
point  appears — let  us  be  allowed  to  add — one  superiority  of 
this  system  over  that  of  city  communities.  When  the  private 
person,  unlettered  perhaps,  and  warped  by  others,  goes  to 
the  assembly,  he  has  an  excess  of  the  feeling  of  power,  but  a 
defect  of  the  sense  of  responsibility,  since  he  act§  alone  for 
himself.  But  the  representative  acts  in  trust  for  others,  who 
have  a  right  to  expect  that  he  will  do  what  they  ought  to  do 
if  they  could  be  in  a  mass  in  his  stead.  This,  therefore,  like 
all  other  delegation,  calls  forth  the  moral  feelings — especially 
the  value  of  esteem  for  fidelity — more  than  most  personal 
transactions  of  a  similar  kind.  Many  a  merchant  will  impose 
on  a  customer  without  scruple,  on  the  ground  that  every  one 
must  judge  of  goods  for  himself,  who  would  feel  that  a  crime 
would  be  committed  by  a  clerk  who  should  practice  imposi- 
tion on  an  employer. 

The  forms  and  rules  of  debate  in  modern  legislative  assem- 
blies could  never  be  observed  in  assemblies  where  the  whole 
body  of  citizens  met  together.  A  session  of  ten  days  consec- 
utively would  be  impossible  in  a  city-state,  and  would  shut 
out  the  industrious  classes,  unless  they  were  paid  for  their 
attendance,  in  which  case  only  the  lower  class,  who  could 
make  nothing  more  by  ordinary  work  than  by  their  pay  at 
the  ccclcsia,  would  be  present.  Iwen  they  would  be  tired 
out  by  sessions  of  a  number  of  days  together.  But  repre- 
sentatives can  meet  almost  daily  for  half  a  year,  and  the 
various  kinds  of  business  can  be  maturing  for  weeks  and 
months  in  the  rooms  of  committees. 

It  is  not  to  be  denied,  however,  that  as  representatives  arc 
left  very  much  to  themselves  within  a  constitution,  liiey  can 
abuse  great  trusts.  In  general  their  temptation  is  to  follow 
the  wishes  of  their  constituents  timidly  and  unrighteously.  A 


no 


POLITICAL  SCIENCE. 


new  election,  the  attacks  of  newspapers  in  the  interests  of 
parties,  any  fear  of  loss  of  influence,  are  sufficient  motives  for 
their  support  of  a  bad  measure  or  law.  But  there  have  not 
been  wanting  also  cases  in  the  history  of  representative  gov- 
ernments where  they  have  showed  themselves  open  to  corrupt 
motives  ;  and  within  the  last  few  years  in  the  United  States, 
instances  of  this  kind  have  either  been  frequent,  or  at  least 
suspicion  of  bribery  within  legislative  halls  has  been  very 
general  and  seemingly  well  founded.  The  modern  occasions 
for  receiving  bribes  have  been  connected  with  the  chartering 
of  great  companies,  whose  vast  business  will,  it  is  thought, 
enable  them  to  be  at  great  expense  in  starting  well.  The 
greater  the  enterprise,  if  it  requires,  like  means  of  locomotion, 
or  like  any  companies  founded  on  a  principle  of  monopoly, 
or  like  subsidies  given  for  public  purposes,  some  legislative 
sanction,  the  more  dangerous  is  it  to  a  democratic  community. 
In  fact,  this  special  danger,  which  is  peculiarly  a  modern  one, 
appears  in  all  communities,  but  most  in  those  where  the  rep- 
resentatives are  not  men  of  substance  belonging  to  the  upper 
class  of  the  community.  And  the  hope  of  getting  a  share  in 
the  gains  acquired  by  knavish  politicians  may  be  a  motive  on 
the  part  of  some  men  for  seeking  places  in  the  legislatures. 
They  go,  it  is  to  be  feared,  wishing  to  be  bribed,  not  intend- 
ing to  vote  against  their  convictions,  but  to  make  gain  out 
of  their  convictions,  like  many  members  of  parliament  in  the 
time  of  Charles  II.  of  England. 

The  principal  remedy  for  such  baseness  within  the  political 
sphere  is  some  restriction  on  the  power  of  special  legislation 
— for  conviction  of  bribery  is  and  always  was  exceedingly 
difficult.  It  is  significant  of  the  feeling  in  this  country,  that 
in  the  latest  revisions  of  state  constitutions,  the  power,  for- 
merly lodged  in  the  legislatures,  of  giving  special  charters,  and 
the  general  power  of  special  legislation  arc  in  great  measure 
taken  away.  Thus,  in  the  new  constitution  of  Illinois,  made 
and  adopted  in  1 870,  which  seems  to  have  led  the  way  in 
confining  legislative  power  within  narrower  limits,  there  are  as 
many  as  twenty-five  cases  enumerated,  in  which  the  general 


DEMOCRACY  AND  DEMOCRACIES. 


Ill 


assembly  is  prohibited  from  passing  any  local  or  special  laws. 
Among  these  are  "granting  to  any  corporation,  association, 
or  individual,  the  right  to  lay  down  railroad  tracks,  and 
amending  existing  charters  for  such  purposes,  and  granting 
any  special  or  exclusive  privilege,  immunity,  or  franchise 
whatever  ;  "  and  in  all  cases  where  a  general  law  can  be 
made  applicable,  no  special  law,  it  is  declared,  shall  be  en- 
acted (art.  iv.,  sec.  22).  Other  restrictions — such  as  that  upon 
the  rate  of  taxation  which  county  authorities  are  allowed  to 
assess,  upon  the  competence  of  the  general  assembly  itself  to 
create  banks  without  the  consent  of  the  people  by  a  general 
vote,  or  to  create  corporations  by  special  laws — are  dictated, 
it  is  probable,  at  once  by  the  desire  to  throw  business  out  of 
the  legislature  which  could  be  provided  for  in  some  other 
way,  and  by  that  of  avoiding  all  that  is  called  lobbj-ing 
and  private  solicitation  of  members  of  that  body  Similar 
provisions  are  introduced  into  the  new  constitutions  since 
1870,  discussed  in  the  states  of  Pennsylvania,  Ohio,  and  Mis- 
souri. This  exhibits  to  us  the  clear  conviction  that  re- 
strictions are  needed  on  legislative  as  well  as  on  execu- 
tive and  on  municipal  power.  And  this  conviction  seems 
to  have  arisen  out  of  the  experience  of  the  dangerous  and 
unsatisfactory  character  of  much  of  the  special  legislation  of 
the  past  in  this  country— a  legislature,  more  than  any  other 
public  body,  being  exposed  to  corrupt  or  temporary  or  local 
influences,  and  exposing  those  who  are  concerned  in  it  to  the 
evil  arts  of  interested  persons. 

Of  course  the  representatives  arc  accountable  for  the  arts 
and  fraud  which  they  may  themselves  have  used  in  securing 
their  places.  In  the  ancient  city-states  attempts  to  procure 
office  by  fraud  were  common  enough.  Modern  democracies 
suffer  from  this  source  of  corruption  no  more  than  modern 
aristocracies,  and  probably  less. 

3.  Qualifications  for  suffrage.     In  the  period  when  aristo- 
LimitationofM.f-  Critical  and  democratical  elements  were  con- 
tending  in  the  ancient  city-states,  the  contest 
was  manifested  by  various  devices  to  restrict  the  suffrage,  or 


112 


POLITICAL  SCIENCE. 


to  extend  it,  or  to  make  it  at  least  less  efficient.  Aristotle 
mentions  some  of  these  devices  (Pol.,  vi.  oriv. ,  lo,  §  5  and 
onw.).  Many,  says  he,  "even  of  those  who  aim  to  make 
polities  aristocratic,  commit  an  error  not  only  in  giving  the 
wealthy  more  than  their  share,  but  also  in  deceiving  the 
plebs  ;  for  in  time  it  is  necessary  that  out  of  good  falsehoods 
evil  truth  should  grow,  since  the  ambitious  desires  of  the 
rich  do  more  harm  than  those  of  the  people."  He  then 
speaks  of  five  sophistical  artifices  in  dealing  with  the  people, 
having  reference  to  the  assembly,  the  magistrates,  the  courts 
of  justice,  the  wearing  of  heavy  armor,  and  the  exercises  in 
the  gymnasia.  The  first  ruse,  that  in  regard  to  the  assembly, 
was  to  impose  a  fine  for  non-attendance,  either  on  the  rich 
alone,  or  a  greater  fine  on  them  than  on  others.  Next  it  was 
made  easy  for  the  poor  to  be  excused  from  office  by  a  sworn 
statement  of  the  inconvenience  [i^o^vva^ai),  but  for  the  other 
class  it  continued  difficult.  "  In  respect  to  serving  in  the  dic- 
asteries,  a  fine  was  imposed  in  the  same  way  on  the  wealthy 
for  failure  in  this  duty,  but  the  poor  were  free  to  perform 
it  or  not ;  or  a  large  fine  was  imposed  on  the  former  and  a 
small  fine  on  the  latter,  as  was  the  case  in  the  laws  of  Cha- 
rondas.  In  some  places,  all  who  got  themselves  registered 
had  a  right  to  participate  in  the  duties  of  the  assembly  and 
of  the  courts,  and  heavy  fines  were  levied  upon  those  who 
after  registration  failed  to  do  their  duties  in  either  of  these 
places,  it  being  the  object  that  the  fine  might  keep  citizens 
from  being  registered,  and  that  when  not  registered  they 
might  be  kept  from  the  ecclesia  and  the  dicasteries."  Simi- 
lar was  the  legislation  in  regard  to  owning  heavy  armor,  which 
allowed  the  poor  not  to  own  it  and  fined  the  rich  if  they  did 
not  ;  and  which  fined  the  latter  for  not  sharing  in  gymnastic 
exercises,  wliile  the  poor  could  be  excused  from  them..  Such 
laws  acted  unequally  on  the  two  classes,  with  the  evident  in- 
tention of  keeping  the  one  away  from  political  life  and  of  un- 
fitting them  for  military  duties,  in  order  that  they  might  not 
exercise  their  rights,  and  also  that  the  others  might  be  active 
citizens  and  soldiers.    In  democracies,  he  adds,  the  sophisms 


DEMOCRACY  AND  DEMOCRACIES. 


113 


— or  devices  to  throw  the  greater  weight  of  power  upon  one 
class  rather  than  on  the  other — are  of  just  the  contrary  kind  : 
the  less  wealthy  get  pay  for  their  attendance  in  the  ecclesia 
and  the  courts  of  justice,  while  the  rich  stay  away  without 
being  fined.  Hence,  it  is  evident  that,  if  there  were  a  due 
mixture  of  political  expedients,  the  rich  ought  to  be  fined 
for  staying  away  and  the  poor  paid  for  coming  ;  all  would 
then  have  an  active  share  in  the  government,  while,  where 
the  devices  spoken  of  are  used,  only  one  part  has  it  in  their 
hands. 

When  there  was  no  balancing  or  controlling  oligarchic 
principle,  especially  where  such  a  principle  had  been  over- 
come after  a  struggle  or  a  haughty  abuse  of  power,  the  suf- 
frage was  extended  to  all  free  native  citizens  and  to  their 
sons  from  an  early  age.  Universal  suffrage  was  a  thing 
necessary  for  a  city-state  when  democracy  had  become  domi- 
nant, that  is,  where  there  was  no  class  in  other  respects  privi- 
leged 

^  197- 

Of  the  Roman  constitution  it  is  enough  here  to  say  that 
Democra.ic  ins.i-  ^he  plan  of  classcs,  with  centuries  containing 
tu.ionsa>Ramc.  uncqual  numbcr  of  voters,  had  the  effect 

that  the  centuries  of  the  higher  classes  or  the  more  wealthy 
citizens,  although  casting  a  smaller  number  of  votes,  if  unani- 
mous, could  always  elect  their  candidate,  since  a  majority  not 
of  votes,  but  of  centuries,  decided.  And  as  the  centuries 
of  the  higher  classes  were  called  first,  it  might  be  that  an 
election  was  certain  without  calling  for  the  suffrages  of  the 
lower  clas.ses,  which  must  have  lessened  the  interest  of  the 
more  humble  citizens  in  the  elections 

The  principle  which  here  prevailed,  of  determining  elections 
by  the  majority  of  centuries  within  classes,  entered  into  the 
reformed  comitia  in  such  a  shape  as  to  unite  the  voting  by 
tribes  and  by  centuries  together.  There  remained  still  the 
centuries  of  cquitcs,  although  they  did  not  vote  first,  and 
every  one  of  the  five  classcs  had  thirty-five  centuries  of  jun- 
VOL.  II.— 8 


114 


POLITICAL  SCIENCE. 


iores  and  thirty-five  of  scniorcs.  The  census  still  determined 
the  class  in  which  each  person  should  be  enregistered,  and 
the  members  in  the  upper  classes,  it  is  altogether  probable, 
were  much  fewer  than  those  in  the  following  ones.  Hence, 
still,  a  preponderance  was  given  to  the  wealthier  citizens ; 
but  this  revised  division  of  the  citizens  leaned  more  to- 
wards democracy  than  the  older  constitution.  Down  to  the 
year  442  of  the  city  (312  B.C.),  none  but  freeholders  could 
enjoy  the  right  of  suffrage.  At  that  time  the  censor  Ap- 
pius  Claudius  arbitrarily  admitted  persons  who  had  movable 
property  and  no  land,  into  any  tribe  they  might  prefer,  and 
into  the  century  suited  to  their  amount  of  property.  A  few 
years  afterwards,  another  censor,  Fabius  RuUianus,  assigned 
"  all  who  had  no  land,  and  those  freedmen  possessed  of  land 
whose  property  was  valued  at  less  than  thirty  thousand  ser- 
terces  [or  about  one  thousand  four  hundred  and  sixty-one 
dollars],  into  the  four  city  tribes  which  were  now  made  to 
rank  not  as  the  first,  but  as  the  last."  In  general,  by  the 
reforms  of  these  years,  "  provision  was  made  for  the  prepon- 
derance of  the  freeholders  in  the  comitia  of  the  iribcs,  while 
in  the  comitia  ceniuriata,  in  which,  from  the  decided  prefer- 
ence given  to  the  wealthy,  few  measures  of  precaution  sufficed 
— the  freedmen  could  do  no  harm."  *  In  the  later  reform,  of 
which  we  have  spoken  already,  and  which  belongs  probably 
to  the  early  part  of  the  sixth  century  of  the  city  (513  =  241 
B  C),  practically  the  change  affected  only  voting  for  censors, 
pr^tors,  and  consuls,  and  the  question  of  declaring  war  ; 
while  the  other  elections,  propositions  of  laws,  criminal 
charges,  were  brought  before  the  comitia  tributa,  where  the 
working  of  the  political  machine  was  more  easy.  But  the 
control  of  the  higher  classes  or  more  highly  assessed  per- 
sons was  diminished,  as  far  as  voting  in  the  comitia  of  the 
tribes  were  concerned,  by  the  fact  that  there  was  an  equality 
within  the  tribe  for  the  citizens  of  free  birth,  whatever  might 
be  their  census.    "  The  democratic,  but  not  demagogic  ten- 

♦  Moinmson,  llisl.  uf  R..  i.,  397,  transl. 


DEMOCRACY  AND  DEMOCRACIES.  1 15 

dency  of  this  reform  of  the  sixth  centurj',  appears  in  the  cir- 
cumstance that  the  proper  supports  of  every  really  revolu- 
tionary- party,  the  proletariat  and  the  freedmen,  still  contin- 
ued as  before  to  hold  an  inferior  position  in  the  centuries  as 
well  as  in  the  tribes."  Yet  from  this  time  is  to  be  dated  the 
existence  ^  of  an  inferior  class  and  of  demagogues  at  Rome, 
and  in  the  ne.xt  centuries  appears  full-grown  tlie  practice  of 
ambitus,  against  which  a  multitude  of  laws  contended  in  vain. 

^  198. 

Rome  here  represents  the  tendency  downward  of  an  arls- 
Tendendes  in  roo-  tocf^cy ,  OT  rather  an  oligarchy  containing  a  dem- 
dern  donociaaes.  ocratic  element.  In  the  large  modern  democra- 
cies the  progress  of  things  is  from  restricted  towards  univer- 
sal suffrage.  We  must  here  make  a  dividing  line  between 
the  time  when  the  right  of  suffrage  was  considered  to  be 
granted  by  the  community  to  those  who  would  be  likely  to 
use  it  in  consistency  with  the  public  welfare,  and  as  a  trust 
committed  to  such  as  had  intelligence  and  integrity  enough 
to  vote  for  good  magistrates, — between  such  times,  when  the 
practical  view  prevailed,  and  the  more  recent  times,  when 
voting  was  considered  to  be  a  right  of  every  grown-up  male 
person,  when  the  right  of  suffrage  and  the  right  of  citizenship 
were  co-extensive,  and  both  were  deduced  from  the  rights  of 
man.  The  French  democratic  constitutions  represent  this 
feeling  of  the  equal  political  rights  of  men  as  formed  under 
the  influence  of  Roiis§eau's  doctrines,  but  never  removed  the 
inconsistence  of  not  admitting  the  female  sex  to  the  same 
privilege  or  natural  right.  The  constitution  of  1793  declares 
every  man  born  and  living  in  France,  of  twenty-one  years  of 
age,  etc.,  to  be  a  citizen,  and  every  citizen  to  have  the  right 
of  taking  part  in  legislation  and  of  appointing  his  representa- 
tives or  agents.  Population  is  the  only  basis  of  national 
representation.  In  the  constitution  of  the  republic  in  1S4S. 
on  the  downfall  of  the  Orleans-Bourbon  dvnastv,  it  is  declared 


*  .Moiniiisen,  u.  s.,  li.,  421. 


ii6 


POLITICAL  SCIENCE. 


that  population  is  the  basis  of  election,  that  suffrage  is  direct 
and  universal,  and  the  act  of  voting  is  to  be  by  secret  ballot ; 
and  that  all  Frenchmen  twenty-one  years  of  age,  and  in  the 
enjoyment  of  their  civil  and  political  rights,  are  electors, 
although  without  property  of  any  kind.  This  constitution 
in  the  main  was  well  suited  to  introduce  the  empire. 

199. 

The  English  colonies  in  America  brought  no  abstractions 
States  of  Ame.-i-  '^^  'th  tlicm,  but  Only  those  practical  safeguards 
can  Union.  whicli,  as  sprung  from  the  Anglican  stock,  they 

had  learned  from  their  very  infancy  to  value.  Although 
equal  among  themselves,  and  thus  destined  to  found  democ- 
racies, they  had  assignments  of  land  made  to  them  and  asso- 
ciated to  a  great  extent  a  freehold  estate  with  full  citizenship. 
I  believe  that  in  all  the  original  thirteen  colonies  no  one  but 
an  owner  of  land  could  have  the  right  of  suffrage.  But  a 
change  came  on.  At  and  after  the  revolution  which  separated 
the  colonies  from  Great  Britain,  moral  and  political  theories 
began  to  be  current,  such  as  "  the  rights  of  man,"  the  equality 
of  men  in  the  state,  while  at  the  same  time  the  number  of 
such  as  had  no  property  or  no  landed  property,  and  a  growing 
hatred  of  privilege,  increased  ;  and  it  came  to  be  regarded  as 
an  odious  thing  to  make  political  differences  between  those 
who  otherwise  had  common  rights.  Indeed,  the  common 
notion  of  citizenship  involved  the  right  of  suffrage.  All  the 
new  states  made  suffrage  universal,  all  the  old  changed  their 
constitutions  in  the  same  direction,  and,  so  far  as  I  am  in- 
formed, no  states  now  place  any  restrictions  on  suffrage,  other 
than  residence  for  a  certain  period,  or  naturalization,  except 
two — Massachusetts  and  Connecticut,  where  ability  to  read 
must  be  made  evident  before  full  citizenship  is  conceded. 

The  constitution  of  the  United  States  has  properly  nothing 
to  do  with  qualifications  for  suffrage,  but  a  recent  amendment 
to  that  instrument  does  encourage  the  extension  of  suffrage 
to  the  last  degree.  I  refer  to  Article  XIV.,  §  2,  which  was 
dictated  by  the  fear  that  colored  persons  would  be  kept  from 


DEMOCRACY  AND  DEMOCRACIES. 


117 


the  enjoyment  of  the  franchise  in  the  states  where  they  were 
numerous.  It  is  enacted,  in  the  passage  referred  to,  that 
"  when  the  right  to  vote  at  anv  election  for  the  choice  of 
electors  for  President  and  Vice-President  of  the  United 
States,  representatives  in  congress,  the  executive  or  judiciary 
officers  of  a  state,  or  the  members  of  the  legislature  thereof, 
is  denied  to  any  of  the  male  inhabitants  of  such  state,  being 
twenty-one  years  of  age,  and  citizens  of  the  United  States,  or 
in  any  way  abridged  except  for  participation  in  rebellion  or 
other  crime,  the  basis  of  representation  therein  shall  be  re- 
duced in  the  proportion  which  the  number  of  such  male  citi 
zens  shall  bear  to  the  whole  number  of  male  citizens  twenty- 
one  years  of  age  in  such  state." 

There  was  probably  no  other  way  of  protecting  the  colored 
race  from  discriminating  laws  in  favor  of  the  whites.  And  it 
was  still  competent  for  every  state  to  introduce  restrictions 
on  suffrage  to  any  extent  into  its  constitution,  if  they  should 
affect  equally  all  colors  and  conditions.  Yet  after  this  amend  - 
mcnt,  to  abridge  suffrage,  by  any  rule  affecting  blacks  and 
whites  both,  would  exclude  from  the  polls  multitudes  of  the 
latter,  and  would  reduce  the  representation  in  congress  ma- 
terially in  the  case  of  those  states  where  slavery  before  the 
late  war  was  most  prevalent. 

§  200. 

Restrictions  on  eligibility  to  office  are  endured  far  more 
readily  by  the  democratic  spirit  than  in  the  mat- 
tcr  of  suffrage,  and  some  of  them,  such  as  a 
maturcr  age  than  is  necessary  for  the  electoral  franchise,  are 
so  very  reasonable  that  there  will  be  a  general  acquiescence  in 
them.  So  nativity  in  the  republic  may  be  insisted  upon  by 
the  citizens  who  have  that  qualification,  as  setting  aside  for- 
eign born  citizens  of  whom  they  feel  jealous.  Hut  the  pos- 
session of  a  certain  amount  of  property,  in  order  to  represent 
a  constituency  or  to  fill  a  public  office,  is  not  at  all  in  accord- 
ance with  the  democratic  spirit. 


Ii8 


POLITICAL  SCIEXCE. 


Enough  has  been  said  to  show  that  a  system  of  represen- 
Representaaon  in  Nation  in  a  Considerable  territory  is  a  preservative 
democracies.  against  somc  of  the  evils  to  which  city-states  are 
liable.  And  for  the  same  reason  that  large  territories  under 
democratic  rule  are  more  moderate  and  conservative  than  lit- 
tle republics,  it  is  evident  that  the  free  landholders  in  a  large 
democratic  state  are  less  innovating,  less  inclined  to  sudden 
excitements  than  the  people  of  large  cities.  Representation, 
however,  has  evils  of  its  own,  which  we  will  presently  con- 
sider. At  present  we  ask,  what  were  some  of  the  evidences 
of  extreme  democracy  in  the  ancient  city-states,  and  whether 
they  can  appear  in  the  modern  system  ?  Since  the  essential 
notion  in  democracy  is  that  all,  rich  and  poor,  have  equal  po- 
litical as  well  as  civil  rights,  and  the  rich  form  the  minority, 
the  government  must  be  in  the  hands  of  the  lower  classes,  if 
they  can  be  made  to  combine  together.  (Comp.  Aristot.,  Pol., 
vi.  or  iv. ,  4,  §  2.)  This  can  be  effected  by  the  modern  dema- 
gogue as  well  as  by  the  ancient  one,  for  the  press  and  the 
public  gathering  take  the  place  in  some  degree  of  the  city 
assembly.  It  is  not  easy,  however,  in  modern  times,  outside 
of  large  towns,  to  make  the  poor  believe  that  the  rich  are  their 
enemies,  nor  do  we  find  the  strifes  and  suspicions  of  classes 
to  prevail  in  modern  times  in  democracies  more  than  in  other 
forms  of  government.  It  is  the  condition  of  a  country  as  it 
respects  wages,  population,  and  the  means  of  risiflg  in  the 
world,  and  as  it  respects  the  sway  of  moral  motives  looking 
towards  industry  and  sobriety,  rather  than  its  form  of  govern- 
ment, that  produces  restlessness  and  the  spirit  of  revolution 
in  the  more  ignorant  classes,  or  the  opposite  temper.  Nearly 
all  of  this  spirit  which  has  shown  itself  in  the  United  States 
proceeded  first  from  foreign  workmen,  and  is  fomented  by 
persons  of  this  class.  And  so  far  as  this  spirit  is  supported 
by  communistic  and  socialistic  principles,  it  is  far  from  being 
democratic,  for  it  is  the  spirit  which  brings  the  individual 
under  the  yoke  of  others,  instead  of  giving  him  the  largest 
liberty. 

The  extreme  democratic  spirit,  like  the  despotic,  is  the 


DEMOCRACY  AND  DEMOCRACIES. 


119 


substitution  of  will  for  law,  and  thus  all  constitutional  limita- 
tions are  so  many  curbs  to  its  hasty  action.  But  the  will  of 
the  individual  cannot  be  made  the  rule  for  others,  unless  he 
persuade  them  that  he  knows  what  is  for  their  interest  better 
than  they  do.  This  is  the  office  of  the  demagogue,  who  is 
as  necessary  in  extreme  democracy  as  tyrants  are  in  the  de- 
generacy of  states  or  where  the  people  are  all  ignorant.  The 
demagogue  may  be  patriotic,  he  may  have  broad  views  ;  but 
his  essential  character  is  to  possess  the  art  of  pleasing  and 
imposing  on  the  people.  He  has  no  necessary  hatred  of  bet- 
ter citizens  than  himself,  nor  of  the  rich,  but  he  will  sacrifice 
them  if  they  stand  in  his  way.  The  temptation  under  which 
he  lies  is  to  be  jealous  of  other  influences  ;  in  this  spirit  he 
will  seize  on  any  expedient  which  can  serve  him  for  an  imme- 
diate end,  will  involve  his  country  in  war,  or  oppress  the  rich, 
or  seek  to  change  the  laws  or  overthrow  the  constitution.  In 
general,  however,  his  plans  are  of  a  lower  kind  :  he  is  the 
manager  of  political  clubs  or  factions  ;  he  originates  compro- 
mises ;  selects  candidates  for  the  people's  votes — who  thus 
obey  him  in  their  most  responsible  act  of  free  citizenship  ; 
makes  platforms  calculated  to  secure  the  greatest  number  of 
votes,  containing  principles  that  perhaps  arc  to  be  forgotten 
as  soon  as  they  have  secured  party  success  ;  spreads  false  re- 
ports of  opposing  parties  or  candidates  ;  makes  promises  of 
inferior  offices  to  his  subordinates,  and  expects  a  reward  for 
himself.  In  the  end  he  will  commit  some  mistake  and  lose 
his  place  ;  but  the  system  requires  that  some  one  else  shall  fill 
it — some  one,  perhaps,  who  has  ruined  his  influence.  The 
dcmus,  it  was  said  of  old,  nourished  such  men  in  the  pnyx  on 
purpose,  like  public  victims,  and  when  it  had  no  meat  for 
supper  killed  one  of  them  who  had  been  well  fattened,  and 
made  its  meal  upon  him. 

The  extreme  democracy  of  ancient  city-states  showed  it- 
M.irks of  icndcncy  sclf  \\\  various  ways,  sucli  as  in  the  resort  to  the 

lo  cxlrcnic  dcmuc- 

lot  m  appointments  to  office  (although  that,  as 
we  have  seen,  may  have  had  other  reasons  for  its  existence), 
in  calling  the  dcmus  in  large  detachments  into  the  courts,  in 


I20 


POLITICAL  SCIENCE. 


multiplying  accusations  for  political  offences  (which,  however, 
had  the  advantage  of  pitting  demagogue  against  demagogue), 
in  requiring  the  rich  to  contribute  to  the  pleasure  of  the 
people  in  sundry  expensive  shows,  and  to  bear  burdensome 
public  services.  The  tendency  towards  the  same  extreme 
appears  in  modern  times  in  ways  like  these  :  (i)  In  the  prin- 
ciple that  the  representative  is  bound  to  obey  the  will  of  his 
constituents.  A  very  great  power  is  given  to  the  representa- 
tive, and  the  check  which  has  been  most  generally  applied  is 
to  control  him  by  the  public  will,  by  the  expectations  and  fear 
of  the  displeasure  of  the  community.  Thus  his  will  must  be 
curbed  by  the  will  of  others,  when,  by  the  very  nature  of  the 
case,  a  moral  responsibility  rests  on  him  which  no  others  can 
relieve  him  of  or  assume.  (2.)  It  is  seen  in  the  doctrine  of 
rotation  of  office.  An  ordinary  man  of  business  would  pre- 
fer to  continue  a  capable  agent  in  his  service,  until  he  mis- 
trusted his  fidelity.  But  the  frequent  change  of  functiona- 
ries follows  the  opinion  that  every  one  has  a  certain  right 
to  office,  and  so  all  who  desire  it  ought  to  be  gratified.  Con- 
nected with  this  is  (3)  the  removal  from  inferior  offices  in 
changes  of  party,  which  is  doing  so  much  mischief  in  making 
politics  mercenary  and  in  binding  men  together  by  the  most 
selfish  ties.  (4.)  Another  great  evil  among  us,  the  abridge- 
ment of  the  term  of  judicial  office,  and  the  election  of  the 
judges  by  the  people,  while  it  may  have  come  into  vogue 
from  the  fact  that  occasionally  incompetent  judges  had  to  be 
endured  until  they  were  superannuated,  seems  to  be  owing 
to  the  pseudo-democratical  principle  that  the  people's  will  in 
regard  to  officers  ought  to  be  carried  out,  as  far  as  possible, 
by  an  election  of  judges,  in  which  they  shall  have  a  voice. 
Whereas,  of  all  functionaries  of  government,  judges  ought  to 
be  chosen  with  the  least  regard  to  their  political  character 
and  the  most  to  their  integrity.  But  the  people  know 
those  who  are  candidates  for  the  office  of  judge  only  on  the 
political  side  ;  and  those  who  conduct  caucuses  and  manage 
nominations  look  mainly  at  rewards  for  such  as  have  labored 
in  the  service  of  the  party.    The  people  want  good  judges, 


DEMOCRACY  AND  DEMOCRACIES. 


121 


but  tlicy  arc  incompetent  to  decide  who  has  the  right  judicial 
quahfications.  There  has  been  a  sad  falUngdown  at  the  very 
point  where  it  is  the  highest  interest  of  every  government, 
under  whatever  poHtical  form  it  is  classified,  to  keep  official 
character  pure.  The  short  term  of  the  judges,  also,  seems 
to  have  no  good  reason  for  it  ;  for  a  man  with  a  judicial  ex- 
perience of  six,  eight  or  ten  years,  has  just  laid  the  founda- 
tion for  an  understanding  of  law  and  a  skill  in  deciding  cases, 
which  would  be  worth  much  more  to  the  state  than  the  ap- 
prentisage,  as  it  may  be  called,  of  his  first  years.  If  we 
have  the  right  view  of  a  state  of  things  which  is  now  very 
general,  a  lawyer  who  is  prominent  among  or  a  favorite  of 
the  politicians,  accepts  the  office  as  a  means  of  acquiring  a 
little  more  respectability,  and  expects,  by  being  known  as  an 
ex-judge,  to  succeed  better  as  a  counsellor  for  the  rest  of  his 
life.  And  so  it  must  happen,  even  if  under'  this  system  no 
charges  could  be  made  against  the  judges,  that  their  dignity 
must  sink  in  public  estimation,  and  that  they  will  be  no  longer 
looked  on  as  the  representatives  of  public  righteousness  and 
equity,  but  as  men  who  came  with  no  great  repute  of  wisdom 
or  justice  upon  the  bench,  in  consequence  of  the  action  of  a 
party  with  which  they  were  connected.  Can  this  gross  mis- 
take in  regard  to  the  appointment  of  judges  fail  of  being  cor- 
rected, or  must  it  continue  and  bear  even  worse  fruits  than 
we  have  yet  seen. 

(5).  Behind  all  this  lies  what  we  may  call  the  caucus  sys- 
tem, which  includes  all  needed  arran^iemcnts  for 

Caucus  system.  ... 

bringing  a  set  of  candidates  under  the  advocacy 
of  the  leaders  of  the  party,  as  the  regularly  nominated  ones, 
before  the  people.  This  mode  of  party  action  is  not  essential 
to  the  existence  of  parties.  There  must  be  parties  in  a  free 
community,  and  they  must  endeavor  to  act  together.  There 
are  parties  as  strictly  separated  by  some  kind  of  lines  in  Great 
Britain  as  ours  in  the  United  .States.  But  they  do  not  have 
the  same  compact  organization,  nor  do  the  chief  workers  in 
them  generally  work  for  the  rewards  of  a  party  triumph, 
nor  have  they  the  same  proscriptivc  principles  with  our  par- 


122 


POLITICAL  SCIENCE. 


ties.  To  \vhat  is  the  difference  owing  ?  I  believe  the  system 
to  be  at  tlie  bottom  an  emanation  from  universal  suffrage  ; 
that  the  stratum  of  society  which  would  be  excluded  from 
the  polls  by  a  very  small  property  qualification  needs  to  be 
informed  whom  to  vote  for  ;  that  while  in  general  they  desire 
good  government,  they  are  not  competent  to  decide  what  it 
is,  or  who  ought  to  administer  it  ;  that  the  best  part  of  society 
will  not  attempt  to  instruct  them,  and  that  thus  they  are  left 
in  the  hands  of  men  who  have  their  own  points  to  carry  by 
the  means  of  such  constituents.  They  would  not  vote  as 
they  do,  if  suddenly  raised  in  intelligence  and  character. 
But  as  long  as  there  is  such  a  class,  there  is  a  demand  for 
demagogues.  And  what  is  worth  noticing,  when  by  the 
help  of  such  a  class  the  leaders  carry  their  points,  the  follow- 
ers think  that  they  have  gained  the  victory,  and  it  is  a  great 
cause  of  the  solid  coherence  of  parties  after  mistakes  and 
weaknesses,  that  they  who  only  \  ote  and  scarcely  know  why, 
are  as  eager  for  the  party's  success  as  any  others.  Whereas, 
from  the  beginning  they  may  not  have  put  forth  one  inde- 
pendent thought.  No  relation  of  subservience  is  more  strik- 
ingly sad  than  this — that  there  are  multitudes  in  the  freest 
countries  who  can  only  vote  according  to  the  will  of  others, 
and  yet  all  the  while  think  themselves  free  and  independent. 

Whether  there  is  any  cure  for  these  evils  we  shall  consider 
in  the  section  on  parties  in  the  United  States. 

^  20I. 

It  has  often  been  said  that  Athens  gives  us  a  sample  of 
The  Athenian      extreme  democracy  ;  it  has  been  called  "  a  fierce 
mocrac>-.  dcmocratie,"  and  yet  with  all  the  faults  of  its 

constitution — which  were  in  part  forced  upon  it — it  did  not 
fall  into  those  fits  of  fanatical  suspicion,  cruelty,  and  bloody 
strife,  which  blot  the  annals  of  some  other  Greek  states.  In 
fact,  as  soon  as  the  principle  of  the  government  was  secured 
against  the  opposite  principle  of  oligarchy,  it  showed  itself 
possessed  of  a  certain  moderation  and  refinement  of  taste, 
which  to  a  great  degree  kept  out  scenes  of  violence  ;  and  it 


DEMOCRACY  AND  DEMOCRACIES. 


123 


had  stability,  order,  and  reverential  feeling  enough  in  it  to 
allow  the  highest  productions  of  human  genius  to  grow  up 
within  its  borders,  the  best  men  of  heathen  antiquity  to  be 
shaped  by  its  institutions. 

Solon's  reforms,  beginning  in  594  B-C.  (when,  as  a  descen- 
dant of  Codrus,  he  was  chosen  archon),  arose  out 
of  the  territorial  factions  which  afflicted  Athens, 
the  insurrection  of  Cylon  with  its  consequences,  and  the  gen- 
eral misery  of  the  free  people  not  belonging  to  the  nobility 
or  eupatrida;.  His  social  measures  for  the  relief  of  distress 
were  the  noted  scisacJitlieia,  by  which  debts  were  either  low- 
ered in  amount  or  wholly  cancelled,  to  which  were  added  a 
lowering  of  the  money  standard  (so  that  the  same  coin  now 
was  made  into  one  hundred  and  thirty-eight  drachmae  which 
before  was  needed  for  one  hundred),  and  the  release  of  mort- 
gaged lands  from  their  incumbrances.  The  necessity  of  these 
extreme  measures  we  cannot  judge  of  with  accuracy,  and 
indeed  cannot  be  entirely  sure  what  the  scisachiJicia  was  ; 
but  that  was  certainly  a  righteous  measure,  by  which  Solon's 
laws  abolished  servitude  for  debt,  and  restored  some  citizens 
who  had  been  sold  into  foreign  lands.  The  political  reforms 
of  Solon  were  first  the  division  of  the  citizens  into  classes 
four  in  number,  according  to  their  property  in  land  ;  no  esti- 
mate of  personal  property  being  taken  as  far  as  appears, 
which  shows  its  relatively  small  amount.  The  first  class  had 
lands  yielding  five  hundred  mcdimtii  (at  about  three  bushels 
each)  of  grain,  or  an  equal  number  of  mctrctce  (equal  each  to 
three-quarters  of  a  medimnus)  of  wine  or  oil,  and  the  two  next 
three  hundred  and  one  hundred  and  fifty  respectively  of  the 
same  measures.  The  fourth  class,  the  thctes  or  free  laborers, 
were  without  landed  property.*  The  three  upper  classes  had 
access  to  the  public  ofliices,  the  first  alone  to  that  of  an  archon 
and  to  a  place  in  the  court  of  Areopagus  ;  and  they  were 

*  Schumann,  Or.  Altertli.,  1.,  332,  infers  from  a  passage  of  Aristotle 
(I'd.,  ii.,  4,  45  4)  that  Solon  by  law  fixed  a  maximum  of  property  for 
the  indivitUial  landowner  ;  but  the  brief  passage  is  ambiguous,  and 
the  fact,  if  1  mistake  not,  nowhere  else  mentioned. 


124 


POLITICAL  SCIENCE. 


either  obliged  to  serve  at  their  own  charges  in  war  as  horse- 
men or  hoplites,  or,  as  was  the  case  with  the  third  class,  as 
heavy-armed  soldiers  only.  The  thetes  had  a  place  in  the 
public  assembly,  and,  ere  long,  at  least  in  the  courts  ;  and 
were  called  on  to  serve  as  paid  troops  in  the  army  or  the 
fleet. 

The  senate  {^ovKri)  consisted  of  four  hundred  chosen  in 
equal  numbers  out  of  the  then  existing;  four 

Senate  or  boule.         .  ° 

tribes,  and  out  of  Solon's  three  upper  property- 
classes.  The  relations  of  this  senate  to  the  ecclesia  seem  to 
have  been  much  the  same  as  they  were  under  the  full  devel- 
opment of  the  democracy,  with  somewhat  more  of  authority 
on  their  part,  or  of  less  on  the  part  of  the  assembled  people. 
The  administration  of  justice  was  committed  to  the  various 
magistrates,  especially  to  the  nine  archons  who  had  each  his 
special  competence.  The  magistrate  decided  cases  himself, 
or  referred  them  to  a  judge  ;  and  with  this  there  was  a  right 
of  appeal  to  larger  courts  selected  from  among  the  citizens — ■ 
but  how  selected,  by  choice  or  lot,  it  is  uncertain.*  Criminal 
cases  were  in  part  brought  before  the  old  courts  of  the 
Ephetae,  to  whom  was  added  a  council  composed  of  life-long 
members  and  supplied  out  of  the  board  of  archons,  when 
their  year  was  out,  if  they  had  served  without  censure.  This 
board  or  council  of  the  Areopagus  had,  with  certain  criminal 
jurisdiction,  a  supervision  over  magistrates,  over  the  public 
assemblies,  the  morals  and  manners  of  the  community. 

In  this  constitution  there  was  no  extreme  ;  it  was  rather  dic- 
tated by  a  .spirit  of  compromise,  and  of  equity  as  Solon  viewed 
equity.  And  such  seems  to  have  been  the  character  of  this 
singularly  upright,  unambitious  man.  His  words,  quoted  by 
Plutarch  (in  vit.,  ch.  i8),  show  his  temper.  He  gave  the 
people,  he  says,  so  much  power  as  sufficed  for  them,  neither 
taking  away  privilege  from  them,  nor  holding  out  more  of  it. 

*Coiiii).  Scliomann,  Gricch.  Alteith.,  i.,  333.  As  for  tlic  rest  of 
what  is  said  on  the  constitutions  of  Athens,  I  must  refer  the  reader 
to  .Schiim.  u.  s.,  C.  V.  Hermann,  Griech.  Antiq.,  Part  i.,  §  io6  et  seq., 
to  Thirlwall,  (Jrote,  and  E.  Curtius. 


DEMOCRACY  AND  DEMOCRACIES. 


125 


"  They  who  had  power  and  were  admired  for  their  wealth, 
for  them  also  I  planned  that  they  should  have  nothing  that 
was  unseemly.  I  stood  holding  a  strong  shield  around  both, 
and  suffered  neither  to  have  the  ascendancy  without  justice." 
This  endeavor  to  legislate  for  the  times,  to  produce  a  bal- 
„.        t.  c    ance  between  classes  without  a  fixed  political 

Changes  after  bo- 

doctrine,  proved  abortive.  The  eupatridse  were 
still  strong  ;  party  and  local  strife  were  not  extinguished. 
The  Pisistratidae  had  their  day  like  other  high-minded  tyrants 
of  the  better  sort  elsewhere,  until  at  length  the  legislation  of 
Clisthenes  laid  the  foundation  of  a  strictly  democratic  consti- 
tution. The  substance  of  Solon's  laws  was  retained  by  the 
PisistratidiE,  but  the  eupatridae,  who  with  Isagoras  for  a  time 
gained  the  chief  power  in  the  state  after  their  fall,  would  not, 
probably  if  they  had  been  able,  have  allowed  the  constitution 
to  continue  as  it  was.  In  fact,  the  equilibrium  of  Solon  was 
impossible.  The  first  measure  showing  the  democratic  policy 
of  Clisthenes  was  to  give  citizenship  to  a  considerable  num- 
ber of  strangers,  slaves,  and  denizens.  (Aristot. ,  Pol.,  iii.,  i, 
§  10).  Another  more  important  one  was  to  abolish  the  old 
division  of  the  people  into  four  tribes,  and  to  substitute  for 
them  ten  new  ones,  which  were  subdivided  into  five  naukra- 

riae  each,  and  into  ten  denii.    The  tribes  had 

Demi. 

no  special  political  importance,  except  that  of 
breaking  up  the  old  territorial  divisions  which  had  aided  the 
influence  of  the  aristocracy.  The  dcmes  (townships  answer- 
ing to  the  word  come,  as  used  by  the  Dorians,  according  to 
Aristot.  Poet.,  3,  6),  originally  a  hundred  in  number,  became 
afterwards  one  hundred  and  seventy-four,  and  in  order  to 
keep  the  tribes  about  equal,  were  shifted  from  one  to  another 
tribe  so  that  they  had  no  necessary  territorial  connection. 
Nor  did  the  residents  within  the  territory  of  a  dnne  belong 
to  it  as  a  matter  of  course.  The  children  pertained  to  the 
deme  of  the  father  wherever  they  lived,  unless  they  passed 
into  another  such  community  through  adoption.  The  dcmes 
were  political  unions  and  not  properly  religious  ;  tiicy  kept 
registers  of  their  members,  and  no  one  could  be  a  citizen  wlw 


126 


POLITICAL  SCIENCE, 


was  not  on  these  books,  or  whose  name  had  been  erased  from 
them  as  being  inscribed  by  fraud.  The  local  divisions,  as  they 
ultimately  appear,  tended  to  destroy  all  local  centres  of  union 
and  all  the  old  local  political  feeling,  and  to  make  Athens  in 
a  more  eminent  sense  the  capital  of  Attica  than  it  had  been 
before. 

With  the  division  into  ten  tribes  the  number  of  the  senate 
was  changed  from  four  to  five  hundred,  fifty  from  each  tribe, 
and  the  members  in  the  colleges  of  magistrates  were  changed 
in  the  same  ratio. 

In  the  time  of  Clisthenes  the  use  of  the  lot  instead  of  elec- 
tion was  introduced,  and  continued  through  the 
Lot.  .  .  ^7 

whole  period  of  Athenian  freedom.    This  was  • 

not,  however,  simply  an  extreme  democratic  measure,  as  if 
every  citizen  had  a  right  to  office  and  increased  his  chance  by 
taking  it  out  of  the  control  of  the  will  of  others.  We  should 
expect  will  to  have  the  fullest  sway  in  the  form  of  government 
which  was  founded  on  the  pleasure  of  the  mass  of  the  people. 
The  lot  must  rather  have  been  intended  to  prevent,  as  far  as 
was  possible,  political  clubs  and  combinations  (eTaipetai) 
from  interfering  with  the  freedooi  of  elections,  and  was  due  to 
the  memory  of  the  factions  which  had  so  much  harmed  Attica. 
It  was  so  managed  that  the  names  only  of  those  who  pre- 
sented themselves  for  the  purpose  were  taken  into  account ; 
and  so  it  might  happen  that  important  men,  like  Themisto- 
cles  or  Aristides,  might  be  drawn  into  the  archonship  because, 
when  they  wished  the  office,  few  who  confided  in  them  would 
be  candidates  against  them.  The  lot,  again,  secured  the  state 
from  cabals  the  more,  because  the  colleges  of  public  officers 
were  often  composed  of  ten  or  more,  and  the  functions  of 
officers  were  greatly  subdivided.  But,  with  great  good  sense, 
the  Athenians  elected,  instead  of  drawing  lots  for,  some  of  the 
principal  officers,  such  as  the  ten  generals  and  the  treasurer 
of  the  city  ;  nor  were  they  apt  to  apply  the  lot  in  the  case 
of  extraordinary  and  occasional  functionaries,  such  as  am- 
bassadors. Upon  the  whole  it  seems  probable  that  the  lot 
saved  the  city-state  from  some  evils,  and  it  is  certain  that  the 


DEMOCRACY  AND  DEMOCRACIES. 


127 


influence  of  leading  men  like  Pericles  was  not  impaired  by  it. 
But  it  was  a  great  political  error  to  create  by  lot  the  nine 
archons  who  had  the  most  important  judicial  duties  to  per- 
form, and  the  importance  of  the  senate  would  have  been 
advantageously  increased  by  another  method  of  selection. 
The  ostracism,  also,  was  a  measure  of  Clisthenes  or  of  his 
time.    Its  object  was  to  remove  for  a  period  of 

Ostracism.  .  .  .  -  ... 

ten  years  a  prominent  citizen,  who  might  be- 
come so  strong  as  to  take  the  government  into  his  hands,  as 
Pisistratus  had  done  in  the  preceding  age.  The  rights  of  the 
ostracized  person  were  only  suspended,  his  property  was  un- 
touched, and  on  his  return  he  was  admissible  into  any  office. 
But  it  wa's  unrighteous  in  itself,  and  when  the  two-handed 
engine  came  upon  the  heads  of  demagogues  it  fell  into  disuse. 
Thus,  as  a  measure  dictated  b)'  suspicion,  it  was  democratical, 
and  yet  the  suspicion  was  in  a  degree  justified.  It  did  not 
belong  to  extreme  democracy,  for  in  the  later  times  of  Athens, 
which  leaned  in  that  direction,  other  ways  of  reaching  politi- 
cal men  were  brought  into  use. 

Athens,  as  Clisthenes  left  it  and  tlie  Persian  wars  found  it, 
was  a  noble  state,  and  through  its  heroic  struggles  in  the  first 
of  those  wars  was  fitted  for  the  position  of  head  of  Greece. 
When  its  best  citizen,  Aristides,  after  the  great  invasion,  car- 
ried the  proposition  to  open  the  power  of  lu)lding  office  to  all 
Equality  as  to  hold-  classcs  of  citlzcns,  to  the  tlictce  as  well  as  to 
ingofncc.  three  classes  of  landowners,  this  was  justified 

at  least  by  gratitude  for  what  all  the  citizens  had  done  to  save 
the  country,  and  was  recommended  also  by  this  consideration, 
that  multitudes  who  before  had  been  capable  of  holding  office 
or  had  been  officers,  had  been  stripped  of  their  all  in  the  burn- 
ing and  ravaging  of  Athens.*  And  the  measure  was  further 
defensible  on  the  ground  that  personal  property,  acc]uircd  in 
trade  and  manufactures,  must  have  increased  considerably 
since  the  time  of  Solon,  so  that  the  propriety  of  a  land  basis 

*  Conip.  Pint.  Aristid.  22,  and  for  the  view  of  .ScIumikuih  .li^'ainst 
Grote,  licit.'  followed,  his  dr.  All.,  i.,  j!40,  and  liis  crilicisiii  on  (iruto 
in  his  Vcrfassuiigsgcsch.  Athens.  (1854.) 


128 


POLITICAL  SCIENCE. 


for  suffrage  could  now  with  reason  become  doubtful.  On 
the  other  hand,  there  would  be  no  great  pressure  of  the  poorer 
class  into  office  so  long  as  its  duties  were  discharged  without 
salary. 

But,  whether  just  or  not,  this  measure  marks  the  direction 
Democracy  in  the  wliicli  the  Athenian  constitution  was  now  taking, 
time  of  Pericles.  g^jjj  ^^^^  dccisivcly  do  the  mcasurcs  of  Pericles 
and  his  friends  in  the  next  age  show  a  democratic  advance. 
These  were  :  first,  the  pay  given  to  those  who  were  present  in 
the  ecclesia — if  they  chose  to  draw  it — or  who  did  service 
as  dikasts  in  the  courts  ;  secondly,  the  theoric  money  given 
out  of  the  public  treasury  to  pay  for  seats  in  the  theatre  and 
for  other  shows  ;  and  thirdly,  the  abridgment  of  the  duties 
of  the  Areopagus,  so  that  thenceforth  it  lost  its  supervision 
over  morals  and  public  officers,  and  was  confined  principally 
to  the  duty  of  acting  as  a  court  in  cases  of  murder  and  of  cer- 
tain other  high  crimes.  After  the  fall  of  the  thirty  tyrants 
the  Areopagus  recovered  part  of  its  police'  and  censorial 
power. 

We  have  thus  traced  the  constitution  of  Athens  until  it 
reached  the  condition  of  a  complete  democracy  without  any 
other  strong  opposing  elements  to  contend  with.  And  this 
absence  of  internal  strife  was  its  great  good  fortune,  an  ad- 
vantage denied  to  many  other  states  of  Greece  where  the  oli- 
garchy and  the  democracy  in  their  strife  brought  untold  mis- 
ery on  the  people.  Athens,  with  all  its  political  defects,  was 
a  republic  where  there  were  no  wholesale  cancellings  of  debts 
after  the  time  of  Solon,  no  attempts  to  overthrow  the  govern- 
ment, no  conspirators  relying  on  foreign  aid,  no  street  fights, 
no  wholesale  judicial  murders,  unless  the  doings  of  the  thirty 
tyrants  were  an  exception.  Compared  with  Florence  it  was 
a  haven  of  rest. 

The  prominent  article  of  the  constitution — if  so  we  may 
Laws  and  psc-  Call  it— was,  that  while  the  people  was  the 
phismata.  sourcc  of  powcr,   uo  law  and  no  resolution 

(psephisma)  could  originate  in  the  assembly.  A  resolution 
must  have  been  first  proposed  in  the  senate,  and  reported  to 


DEMOCRACY  AND  DEMOCRACIES. 


129 


the  assembly  by  that  committee  of  the  senate  who  were  the 
presiding  officers  of  the  meeting :  when  brought  before  the 
people,  it  could  be  modified  and  so  passed.  But  to  propose 
a  law,  or  originate  a  resolution  in  the  ecclesia,  subjected  the 
author  of  it  to  a  prosecution  for  doing  illegal  things  (a  ypacpr) 
•n-apavofiwv),  which,  if  brought  before  the  court  and  decided 
against  him,  might  bring  on  him  a  very  heavy  fine,  if  not  the 
loss  of  life,  and  after  three  convictions  for  the  offense  the  for- 
feiture of  civic  rights.  This  was  one  of  the  principal  modes 
of  attack  by  which  opposing  politicians  sought  to  overthrow 
each  other's  power. 

When  new  laws  were  to  be  enacted,  the  projects  of  them 
needed  to  be  laid  before  a  large  committee  of  the  people, 
called  the  nomothctce ,  selected  from  the  number  of  those  who 
were  annually  appointed  and  sworn  to  sit  as  judges  in  the 
courts.  The  people  in  the  ecclesia  appointed  five  advocates 
of  the  old  law ;  the  proceedings  before  the  nomotlietce  were 
prepared  by  action  on  the  part  of  the  senate,  and  after  exami- 
nation the  decision  in  favor  of  the  new  law  seems  to  have 
brought  with  it,  as  a  matter  of  course,  abrogation  of  the  old 
one.* 

A  very  remarkable  feature  of  the  Athenian  political  sys- 
tem  was  the  absence  of  a  central  magistracy, 

Divided  executive.  *^  '' 

and  the  complete  independence  of  the  function- 
aries upon  one  another.  In  many  ancient  city-states  this 
was  carried  very  far;  thus,  the  consuls,  pra;tors,  quaestors, 
asdilcs,  tribunes,  censors,  at  Rome,  were  not  amenable  nor 
properly  subordinate  to  one  another.  But  it  went  to  a 
much  greater  length  at  Athens.  Every  board  of  officers 
was  a  kind  of  commission  from  the  people,  and  accountable 
to  them  as  well  as  to  special  boards  of  control  appointed  for 
the  purpose.  All  official  persons  were  subject,  before  enter- 
ing upon  their  work,  to  an  examination  which  related  to  their 
citizenship  and  character.  Through  the  year,  in  the  first 
assembly  of  every  prytany,  i.e.,  ten  times  in  the  year,  the 

"  Comp.  C.      Ilcrni,  u.  s.,  i.,  131. 
VOL.  II.— 9 


I30 


POLITICAL  SCIENCE. 


people  were  asked  whether  the  conduct  of  the  public  officers 
satisfied  them,  and  at  this  time  any  citizen  could  bring  a  pub- 
lic complaint  against  any  functionary  on  which  the  courts  of 
justice  would  act,  if  the  people  thought  the  complaint  to  have 
a  sufficient  ground  ;  or  the  people  itself  might  remove  a  man 
from  his  office  by  vote.  Again,  when  the  official  year  was 
closed  or  any  especial  agency  was  terminated,  which  involved 
the  use  of  public  money,  the  officer  appeared  before  the 
board  q>{  logistce  to  give  in  his  reports,  and  his  accounts  were 
referred  by  them  to  still  another  board,  the  ciitliyute,  who 
were  authorized  to  bring  cases  of  misuse  of  public  funds 
before  the  courts  ;  or,  finally,  any  private  person  might 
appear  as  an  accuser. 

The  dokimasia  of  the  nine  archons  will  show  the  amount 
of  caution  the  Athenians  used  in  respect  to  the 

Dokimasix.  ,  . 

most  important  magistrates.  The  examming 
board  was  the  council  of  five  hundred,  who  inquired  not 
into  their  knowledge  of  law — where  both  parties  would  have 
failed  alike — but  whether  they  were  Athenians  on  both  father's 
and  mother's  side,  to  what  dcmc  they  belonged,  whether  they 
honored  Apollo  Patrons  and  Zeus  Herceius  with  their  wor- 
ship, whether  they  had  shown  filial  piety  toward  their  par- 
ents, had  performed  the  required  military  service,  and  pos- 
sessed the  requisite  property.  The  generals  also  were  asked 
whether  they  were  living  in  legitimate  marriage  and  held  real 
estate  in  Attica.  A  few  responsible  officers  were  thus  re- 
quired by  law  to  hold  landed  property,  although  after  the 
lot  was  used  the  archons  probably,  being  selected  by  lot,  were 
not  of  this  number.  All  this  care  shows  that  the  Athenians 
felt  it  necessary  to  check  the  facility  of  electing  the  worst 
men  by  especial  examination  of  their  fitness,  and  the  dokima- 
sia was  the  make-weight  for  the  evils  of  the  lot  and  of  popu- 
lar election. 

The  courts  of  Athens  are  the  most  remarkable  feature  of 
the  polity,  and  probably  had  a  greater  bearing 

Courts  of  justice.  '     \       c  ^    •  .  C 

on  political  life  th;ui  can  be  found  in  courts  ot 
any  other  state,  ancient  or  modern.    When  the  Hcliastic 


DEMOCRACY  AND  DEMOCRACIES.  13I 

court  system  was  perfected,  it  consisted  first  of  six  thousand 
citizens  drawn  by  lot  to  be  judges,  of  whom  five  thousand 
were  assigned  in  ten  equal  squads  to  ten  places  of  justice. 
These  were  the  dikasts  or  judges,  who,  according  to  the 
importance  of  the  case,  sat  together  in  numbers  varying  from 
one  to  five  hundred,  and  sometimes  even  several  courts  were 
united  together.  The  business  brought  before  the  courts 
passed  first  through  the  hands  of  preparing  magistrates, 
whose  principal  name,  "  presidents  of  courts,"  shows  that 
after  preparation  of  a  case  they  presided  in  the  dikasteries, 
produced  the  written  evidence  in  the  case,  kept  order,  had 
the  votes  of  the  judges  counted,  and  announced  the  decision. 
These  presidents  of  courts  were  very  numerous  ;  it  was  a 
principle  that  each  public  officer  could  be  a  president  of  a 
court  within  his  own  especial  sphere,  as  the  generals,  the 
boards  of  control  and  the  like  ;  and,  in  fact,  it  was  made  the 
definition  of  a  viagistratc  (an  apyr\)  that  he  had  to  do  with 
public  affairs  for  more  than  thirty  days,  and  could  preside 
over  a  court.  This  wonderful  splitting  up  of  judicial  duty 
among  so  many  magistrates,  was  due  to  the  development  of 
the  democratic  spirit  since  Solon.  But  the  nine  archons  still 
retained  most  of  the  important  jurisdiction  in  their  hands, 
and  several  of  the  departments  of  law  were  assigned  to  one 
or  another  of  them.  Thus  the  archon,  properly  so  called, 
had  jurisdiction  in  cases  pertaining  to  the  family  relations  ; 
the  archon  king  in  cases  touching  religion  ;  the  archon  pole- 
march,  in  those  where  foreigners  were  concerned,  being  a  sort 
oi pr(Zto7- pcrcgrinns:  while  the  si.x  remaining  ones,  called  by 
the  general  name  of  ihcsinothctce,  had  the  dokimasia;  in 
their  hands,  and  most  private  suits  relative  to  property  and 
obligations  ex  contractu.  These,  and  other  magistrates  who 
presided  in  courts,  had  it  for  their  especial  duty  to  see  to  the 
summonses  of  the  parties,  and  the  proper  bringing  of  the  suit  ; 
to  make  the  preparatory  examinations  ;  to  have  the  evidence 
reduced  to  writing  and  fix  on  the  time  and  place  for  the  trial  ; 
to  keep  the  evidence  in  a  sealed  vessel  ready  for  use  in 
court ;  to  preside  there— an  office  which  included  every  step 


132 


POLITICAL  SCIENCE. 


necessary  for  carrying  on  the  case  to  its  close — and  to  an- 
nounce the  verdict. 

This  is  not  the  place  to  dwell  on  Athenian  trials  ;  we  only 
notice  one  or  two  particulars.     I.  There  was 

Trials.  ^ 

no  public  prosecutor,  but  every  citizen  enjoy- 
ing full  civic  honor  could  make  accusations.  As  a  check  on 
the  strong  propensity  to  bring  suits  Avithout  sufficient  reason, 
the  law  provided  that  in  some  private  suits  the  complain- 
ant, if  he  lost  his  suit  so  that  not  more  than  a  fifth  of  the 
votes  was  in  his  favor,  should  pay  to  his  adversary  a  sixth 
part  of  the  estimate  or  damages.  When  a  complainant  had 
dropped  a  case  after  appearing  before  a  magistrate,  and  in 
public  suits  where  he  had  not  more  than  one-fifth  of  the 
votes  in  his  favor,  he  incurred  a  fine  of  a  thousand  drachmce 
and  was  disqualified  from  instituting  the  same  kind  of  suits 
afterward.  2.  While  in  many  cases  the  penalty  for  an  illegal 
act  was  fixed,  in  a  large  number  of  public  and  private  suits 
it  was  permitted  to  the  plaintiff  to  make  his  estimate  or  lay 
his  damages  at  any  amount  of  money  or  of  personal  suffer- 
ing, even  at  that  of  death,  and  for  the  defendant  to  put  his 
estimate  as  low  as  he  pleased.  The  judges,  as  it  seems,  had 
the  power  to  bring  in  their  own  estimate  varying  from  those 
of  the  parties.  This  gave  political  enemies  the  power  of  at- 
tempting the  ruin  of  their  adversaries,  while,  on  the  other 
hand,  high  estimates  were  an  argument  of  the  defendant  ad- 
dressed to  the  pity  of  the  judges.  3.  When  a  private  suit 
was  decided,  the  victorious  party  had  to  take  his  own  means 
to  come  into  possession  of  what  the  court  had  adjudged  to 
him,  and  he  could  be  greatly  worried  during  the  attempt  by 
a  skilful  opponent.  4.  There  were  properly  no  appeals  from 
a  decision  of  the  dikasts  to  any  higher  tribunal,  although 
there  were  suits  on  the  ground  of  not  having  been  summoned 
by  the  adversary,  or  for  "  evil  arts,"  etc.,  which  had  the 
effect  of  setting  aside  the  verdict,  or  of  anticipating  it  by  a 
suit  of  the  original  defendant.  Appeals  were  allowed,  how- 
ever, in  those  cases,  probably  very  numerous,  where  the  pro- 
ceedings were  first  begun  before  the  public  arbitrators,  who 


DEMOCRACY  AND  DEMOCRACIES. 


took  the  initiatory  steps,  just  as  the  archon  and  other  magis- 
trate would  have  done,  and  thus  saved  him,  if  the  case  ever 
came  before  him,  from  a  new  examination  of  the  case. 

The  dikasts,  being  a  portion  of  the  people,  carried  the 
Kviis  of  judicial  political  feelings  of  the  less  wealthy  members 
system.  community  into  the  tribunals.  Among 

the  public  suits  or  ypacfial  were  many  which  might  have  a 
political  bearing,  such  as  those  for  various  kinds  of  military 
offences,  for  embezzling  public  money,  for  taking  or  offering 
bribes,  for  false  claims  of  citizenship,  for  treason,  tyranny, 
and  putting  down  the  democracy.  Others  were  not  only 
political  but  implied  the  existence  of  political  parties.  Such 
were  the  suits  for  misconduct  on  an  embassy  and  for  illegal 
doings  (ypatf>T}  Trapavofxcov).  The  last  suit  afforded  a  good 
opportunity  for  a  political  leader  or  demagogue  not  only  of 
putting  a  stop  for  the  time  to  an  objectionable  law  or  resolu- 
tion, but  also  of  measuring  swords  before  the  courts  with  po- 
litical adversaries.  Aristophon  of  Azenia,  a  party  leader  of 
no  small  importance,  just  after  the  Peloponnesian  war, 
boasted,  according  to  ^Cschines  (c.  Ctes.  440  Reiskc)  that  he 
had  been  a  defendant  in  seventy-five  suits  of  illegality.  Such 
suits  must  have  been  intensely  interesting,  as  the  charm  of 
personiil  contest  was  combined  with  party  zeal,  and  before 
one  or  two  thousand  judges  they  afforded  the  highest  field 
for  eloquence.  It  ought  to  be  taken  into  consideration,  also, 
that  many  of  the  parties  were  well  -known  to  the  judges,  so 
that  the  verdict  could  seldom  be  unbiassed. 

To  this  are  to  be  added  accusations  brought  before  the 
people  or  the  senate  which  called  for  some  special  vote 
against  an  obnoxious  citizen  with  which,  as  prima  facie  evi- 
dence of  guilt  against  him,  his  foe  could  appear  before  the 
tribunal  of  justice. 

A  very  considerable  number  of  days  in  the  year  were 
p.iy  in  courts  and  dcvotcd  to  thc  holding  of  courts,  so  that  the 
thcecci«ia.  largc  dctachmcnts  of  the  people,  to  whom  thc 
duty  of  judging  was  given  by  lot,  were  kept  busy,  lioforc 
Pericles  was  prime  minister  of  Athens,  the  judges  served 


134 


POLITICAL  SCIENCE. 


without  pay.  It  was  certainly  not  unfair,  if  the  judges 
should  not  consist  mainly  of  wealthy  men — of  whom  prob- 
ably a  sufficient  number  could  not  be  found  for  this  purpose, 
especially  as  they  were  called  into  the  fleet  or  the  army  in 
the  Peloponnesian  war — to  give  a  small  dole  of  one  oboliis, 
per  diem,  to  those  who  served  the  state  in  this  capacity. 
This  pay,  instituted  by  Pericles  (Aristot.  Pol.,  ii.,  9,  <^  3), 
was  increased  to  three  oboli  by  Cleon,  as  Boeckh  tries  to 
show  (Staatshaush.,  ii.,  14).  This  increase,  if  the  pay  was 
one  obol  at  first,  was  not  unjust,  when  the  Avar  drove  many 
into  the  city  and  prices  grew  higher.  In  the  same  way  the 
pay  for  being  at  an  assembly  was  one  obolus  at  first  and 
afterwards  three,  the  change  being  made  by  the  influence  of 
the  demagogue  Agyrrhius  about  390  B.  C,  some  time  after 
the  end  of  the  Peloponnesian  war. 

The  philosophers  who  lived  soon  after  Pericles  ascribe  to 
Kffects  of  this  '"''"^  ^  corrupting  influence  on  account  of  this 
measure.  Plato  makes  Socrates  say  in  the 
Gorgias  (515  E)  that  he  "  made  the  Athenians  lazy,  cowardly, 
talkative  and  greedy  of  money  by  first  bringing  them  to  the 
taking  of  pay  for  the  performance  of  political  duties."  And 
Aristotle  says  that  "  Ephialtcs  abridged  the  powers  of  the 
council  on  the  Areopagus,  and  Pericles  gave  pay  to  the 
courts.  Thus  it  is  that  each  one  of  the  demagogues  ad- 
vanced and  strengthened  the  democracy  until  it  reached  its 
present  condition."  (Pol.,  ii.,  9,  §  3.)  "This  seems  to  have 
gone  on,  not  according  to  the  design  of  Solon,  but  to  have 
come  about  by  accident.  For  the  danns,  having  become 
the  cause  of  the  naval  supremacy  in  the  times  of  the  Median 
wars,  grew  proud  and  took  for  itself  corrupt  demagogues, 
the  upright  men  being  on  the  opposite  side  in  politics." 
(u.  s.  §  4.)  The  Wasps  of  Aristophanes  also  abound  in 
references  to  the  political  side  of  the  judicial  system.  The 
members  of  the  chorus  exhort  one  another  to  "  hurry  on,  for 
Laches  has  got  to  take  it,  and  all  say  that  he  has  a  hoard 
of  money.  Cleon,  therefore,  yesterday  bade  us  come  in  sea- 
son with  a  provision  of  three  days'  fierce  wrath  against  him 


DEMOCRACY  AND  DEMOCRACIES. 


to  punish  him  for  his  wrong  deeds  "  (v.  240).  And  so  also 
the  suspicion  of  conspiracies  to  bring  about  a  tyranny  is 
most  exquisitely  ridiculed  in  vv.  488,  499.  And  the  worthy 
old  dikasts  are  charged  with  being  slaves  to  the  political 
managers  who  take  all  the  bribes  while  they  are  content  with 
their  pittance  of  pay.  (666  et  seq.)  There  is  reason  to  be- 
lieve that  this  opinion  entertained  by  conservative  persons 
like  Aristophanes  and  Plato  was  not  a  distorted  one.  The 
courts  were  felt  to  be  the  watchmen  of  the  state,  but  being 
under  the  demagogues  and  bringing  every  prejudice  with 
them  and  every  suspicion,  they  could  not  but  be  partial  and 
often  unjust.  Hence,  and  because  of  their  ignorance  of  law, 
they  were  open  to  all  pleas  ad  misericordiam,  to  all  claims 
for  deserving  well  of  the  people,  and  considerations  had 
weight,  even  where  the  trial  was  not  a  political  one,  which  a 
modern  advocate  would  not  be  allowed  to  use.  In  fact,  from 
a  general  knowledge  of  the  parties  in  suits  the  dikasts  must 
have  been  prepossessed  for  one  or  the  other ;  and  few  tri- 
bunals of  one  or  two  hundred  men  could  have  contained  a 
majority  of  unbiassed  triers  of  a  case.  And  yet  the  spirit 
prevailing  in  the  Athenian  courts  must  have  been  far  fairer 
and  milder  than  that  which  oligarchical  state-systems  cher- 
isiied.  When  the  Thirty  governed  Athens,  they  abolished 
the  popular  tribunals  and  the  Areopagus  ;  and  the  council  of 
the  four  hundred,  established  a  little  before,  was  entrusted 
with  the  judicial  power  in  criminal  cases,  but  was  required  to 
give  open  votes  in  the  presence  of  the  tyrants.* 

The  judicial  system  was  in  a  manner  necessary,  if  wc  con- 
liiiirgia:  sider  the  previous  history  of  Athens,  and  the 
usages  of  Greek  states  ;  but  another  emanation 
of  the  dcmocratical  spirit  had  no  such  apology.  We  refer  to 
the  l)urdens  laid  on  the  rich  by  the  state  for  the  pleasure  of 
the  people.  These  burdens  were  grouj^ed  together  under  the 
name  lituri^^ice,  or  public  services,  and  included  the  offices  of 
the  leader  of  a  chorus,  of  the  director  in  sacred  games,  such 


*  Coinp.  E.  Curtius,  trans.,  iv.,  22,  .Aiucr.  cd. 


136 


POLITICAL  SCIENCE. 


as  torch  races  on  foot  or  horseback,  of  the  chief  of  a  sacred 
embassy  i^architheoria),  with  that  of  feasting  the  members  of 
a  tribe  and  with  some  others.  These  constantly  recurred, 
but  the  tricrarcliia  or  duty  of  commanding  a  galley  was  im- 
posed only  on  special  occasions.  Every  man,  with  property 
valued  at  three  talents  (about  $3,200),  was  bound  to  discharge 
these  services  at  his  own  cost,  but  could  not  be  called  upon 
twice  during  the  same  year.  The  tribes  had  each  its  turn 
and  selected  each  its  wealthier  members  in  regular  order.  If 
a  less  rich  member  was  put  forward  for  a  litiwgia  before  a 
richer,  he  could  have  the  decision  made  between  him  and  the 
other  by  a  peculiar  process  of  law.  These  shows  began 
before  the  time  of  Solon,  so  that  the  completed  democracy 
was  not  answerable  for  them.  But  with  the  increase  of  re- 
finement they  increased  in  e.xpcnsivcness  ;  rivalry  between 
persons  or  tribes  increased  the  cost,  and  it  became  a  most 
serious  burden.  The  trierachy  was  the  successor  of  the  times 
before  the  democracy  was  established,  when  each  of  the 
iiajLCi'arice  or  taxable  divisions,  fifty  in  number,  was  obliged 
to  furnish  a  ship.  Afterwards  it  fell  to  the  generals  to  select 
the  necessary  number  of  men  holding  the  greatest  amount  of 
assessed  property,  who  should  be  obliged  to  furnish  each  a 
galley  and  keep  it  in  repair  during  his  time  of  service,  the 
state  answering  for  the  bare  ship  and  the  crew's  pay.  This 
was  a  grinding  duty,  as  is  shown  by  the  several  shapes  it 
took  in  process  of  time.  The  complaints  concerning  these 
duties  are  not  infrequent.  Isocrates  says  that  "it  is  more 
grievous  for  owners  of  property  to  live  at  Athens  than  for 
those  who  are  continually  poor."  Xenophon,  in  his  Convivium, 
makes  Charmides,  the  friend  of  Socrates,  say  :  "  When  I  was  a 
wealthy  man  here,  I  was  afraid  in  the  first  place  that  some 
one  would  break  through  into  my  house,  take  my  property 
and  do  some  evil  to  my  person.  Then  I  courted  the  in- 
formers and  accusers,  as  knowing  that  I  could  receive  more 
harm  from  them  than  they  could  from  me.  For  orders 
would  be  given  to  me  continually  b)'  the  city  to  be  spending 
something,  and  I  was  never  allowed  to  go  abroad.    But  now 


DEMOCRACY  AND  DEMOCRACIES. 


that  I  am  deprived  of  what  I  own  beyond  the  borders,  and 
I  receive  no  revenues  from  my  property  in  Attica,  and  what 
I  had  in  my  house  has  been  sold  ;  I  sleep,  quietly  stretching 
myself  out,  and  I  have  become  to  the  city  an  object  of  trust 
and  no  one  threatens  me,  while  I  threaten  others  and  like  a 
freeman  can  go  abroad  or  stay  at  home.  And  rich  men  even 
rise  up  when  they  see  me  coming,  and  let  me  have  their  seats 
and  step  aside  for  me  to  pass.  Then  I  paid  tribute  to  the 
city,  now  the  city,  bringing  me  its  contributions,  maintains 
me."  * 

These  services  of  the  wealthy  arc  not  to  be  regarded  as  a  tax, 
for  they  were  called  for  when  there  were  tio  property-taxes, 
and  those  who  were  free  from  the  usual  liturgice,  as  heiress 
daughters  and  minors,  bore  the  other  burden.  The  cispliora, 
or  property-tax,  was  first  introduced  in  377  B.  C,  and  classes 
were  established  in  which,  as  afterwards  in  the  towns  under 
the  decaying  empire  of  Rome,  the  wealthier  members  ad- 
vanced the  contribution  of  the  rest,  and  then  collected  from 
the  other  members  their  shares  amicably  or  by  process  of 
law.  This  advance  for  others  sometimes  bore  the  name  of  a 
litiirgia,  and  was  a  process  full  of  injustice.  It  is  worth  while 
to  add  that  in  other  democracies  the  same  plan  was  pursued, 
and  that,  if  Bocckh  is  correct  f  in  making  the  first  of  Solon's 
classes  liable  to  pay  taxes  on  the  whole  of  its  income,  while 
the  second  paid  only  on  five-sixths,  and  the  third  on  five- 
ninths,  we  should  have  here  a  sliding  scale  against  the  more 
wealthy  of  very  doubtful  justice  ;  an  instance  of  which,  how- 
ever, has  recently  occurred  in  the  United  States,  where  in- 
comes above  a  certain  amount  paid  an  income  tax  of  ten  per 
cent. ,  and  those  below  of  only  five. 

When  democracy  at  Athens  took  its  final  form,  and  while 
demagogues,  the  radical  nuisance,  corrupted  tiic  people  at 
home  for  their  own  ends,  thus  destroying  the  energies  of  the 
state,  there  was  far  less  of  oppression,  during  the  supremacy 

*  Coini).  also  Xeii.  (Eron,  11,  6,  and  various  places  in  Aristotle's 
politics,  and  C.  V.  HLTrnann,  11.  s.,  i.,  i;$<  68,  160-162. 
fConip.  liocckh,  btaatsli.,  book  iv.,  'ij  5. 


POLITICAL  SCIENCE. 


of  Athens,  of  the  sea-states,  their  confederates,  than  was  ex- 
ercised by  Sparta  in  her  supremacy.  Nor  were  the  rich  at 
home  more  bled  for  public  uses  than  they  could  bear,  for 
otherwise  the  state  would  have  soon  sunk,  but  it  was  for  them 
a  pleasant  home  as  it  was  for  the  poor  and  for  the  crowds  of 
aliens.  And  we  must  not  forget,  in  estimating  the  policy  of 
ancient  states  according  to  its  moral  character,  that  the  sense 
of  personal  rights  over  against  the  interests  of  the  whole  com- 
munity, or  of  the  leading  element  in  it,  was  but  small. 

§  202. 

\Vc  close  what  we  have  to  say  on  democratic  states  with 
Modern  democra-  ^he  mcntion  of  somc  particulars  wherein  the 
cy and  a.icie.u.  modem  dcmocracy  differs  from  the  ancient. 
And  here  it  may  be  doubted  whether  modern  democracy 
may  be  spoken  of  as  a  genus  without  noticing  the  differences 
between  the  manifestation  of  its  spirit  in  different  countries. 
The_great  contrast  between  the  latest  forms  is  that  between 
the  French  type  and  the  type  in  the  United  States.  And 
here  we  cannot  separate  the  genius  of  the  two  races  from  the 
color  which  their  attempts  at  constructing  new  governments 
have  taken.  Equally  important  is  it  also  to  estimate  the 
bearing  of  their  past  political  habits  upon  their  judgments 
when  they  were  called  upon  to  build  up  new  fabrics  of  gov- 
ernment. The  French,  after  their  work  of  destruction  was 
over,  had  no  habits  of  self-government  to  start  with  upon  a 
new  career.  That  was  the  crime  of  the  old  regime  that  it  put 
out  of  the  way  what  it  could  of  self-government,  and  lived  on 
amid  changes  of  opinion  as  to  all  subjects  of  thought,  blind  in 
regard  to  tendencies  until  the  tendencies  could  not  be  con- 
trolled. The  inheritance  of  the  French  democrats  consisted  in 
theories  of  rights,  in  letting  speculation  preside  over  the  work 
of  reconstructing  society.  The  American  change  of  forms — 
I  refer  to  the  colonies'  entire  independence  on  the  mother 
country,  and  to  the  union  of  states — was  altogether  different. 
The  colonics  had  been  used  to  self-government  in  the  minor 
divisions  of  the  communities  and  in  the  general  affairs  of  the 


DEMOCRACY  AND  DEMOCRACIES. 


colonics  themselves.  Those  colonies  vhich  had  governors 
appointed  by  the  crown  were  self-governing  in  all  things  else  ; 
the  few  that  chose  their  own  chief  magistrate  were  practically 
independent,  with  only  a  possible  interference  on  the  part  of 
the  crown  owing  to  violations  of  their  charters.  They  all 
made  their  own  laws,  laid  taxes,  elected  their  own  represen- 
tatives, coined  money,  contracted  debts,  established  chartered 
companies  ;  and  some  of  the  oldest  had  an  established  church, 
limited  only  by  the  toleration  act  of  William  III.  Thus  when 
a  crisis  came  they  had  all  necessary  political  habits,  the 
knowledge  of  English  precedents,  and  a  reliance  on  the  ex- 
perience of  many  years'  contest  with  trials  incident  to  new 
settlements.  Add  to  this  that  partial  confederations  had 
pointed  the  way  to  concerted  action  whenever  the  times 
should  call  for  it.    (Comp.  ^  212,  beginning.) 

The  difficulties  of  the  French  in  reconstruction  were  many 
times  greater  than  those  of  the  United  States.  Both  had  to 
resort  during  their  revolutions  to  paper  money,  and  both  were 
bankrupt.  But  France  had  powerful  classes  to  contend  with  ; 
a  vast  peasantry,  which  had  been  religiously  trained  under 
despotical  power,  to  be  secured  for  the  revolution ;  vast  bodies 
having  an  interest  unlike  that  of  the  revolutionists,  to  be 
watched  or  driven  out ;  and  then  all  luiropc  in  arms  against 
the  fanatical  spread  of  the  new  ideas.  Nothing  of  this  existed 
on  the  western  side  of  the  Atlantic.  The  people  were  sub- 
stantially one.  No  religious,  nor,  at  that  time,  social  or  sec- 
tional differences  divided  them.  There  was  little  of  furor  in 
the  movement.  Practical  ends,  with  a  feeling  that  they  were 
injured  in  their  rights  as  Englishmen,  nerved  them  for  the 
war.  They  fought  religiously,  and  a  regiment  went  from  one 
quarter  with  the  minister  of  the  parish  where  many  of  the  men 
were  recruited  for  their  chaplain.  They  carried  away  from 
the  war  no  hatred  of  the  mother  country,  although  it  must  be 
confessed  that  the  impressment  of  sc.imen  by  Great  Britain 
and  a  great  infusion  of  disaffected  persons  from  abroad  after- 
wards, to  a  considerable  extent,  changed  their  feeling  of  re- 
gard for  the  land  of  the  ancestors. 


I40  POLITICAL  SCIENCE. 

It  will  thus  be  seen  that  the  revolutionary  war  was  not 
strictly  a  war  of  theory,  nor  was  there  any  cry  of  "  liberty, 
fraternity  and  equality,"  as  if  these  things  were  not  enjoyed 
already.  In  addition  to  this  there  was  a  great  degree  of 
steadiness,  a  social  stability  in  the  American  colonies,  wholly 
unlike  the  unsteady,  never-ceasing  dissatisfaction  of  the 
French  people  with  the  present,  leading  on  to  new  experiments 
of  revolution.  Two  of  the  smallest  states  (Connecticut  and 
Rhode  Island)  had  for  their  instruments  of  government  the 
charters  granted  by  Charles  II.  With  these  they  went  through 
the  revolution  and  into  the  present  century.  The  steadiness 
of  one  of  them  will  show  how  the  political  habits  of  small  self- 
governing  bodies  can  continue  the  same  through  several  gen- 
erations, when  there  are  few  changes  and  no  sudden  changes 
in  the  structure  of  society  ;  when  there  is  a  very  general 
equality  of  possessions  and  nearly  all  are  landowners.  The 
charter  of  Charles  II.,  granted  in  1662,  provided  for  electing 
a  governor,  deputy-governor,  and  twelve  assistants,  and  for 
a  meeting  twice  a  year  of  these  officers  and  of  the  freemen, 
o-r  of  not  more  than  two  of  them  selected  from  each  place, 
town  or  city,  to  be  called  the  general  assembly.  The  powers 
granted  to  this  assembly  included  the  establishment  of  courts 
of  justice,  the  passage  of  all  reasonable  laws  not  contrary  to 
the  laws  of  England,  the  administration  of  oaths,  the  insti- 
tution of  a  military  power,  including  land  and  sea  forces, 
sufficient  for  their  own  defence,  free  importation  and  exporta- 
tion, subject  to  duties,  customs,  or  subsidies  payable  to  the 
king  and  his  successors.  The  right  of  taxing  the  inhabitants 
for  the  support  of  the  colonial  government  seems  to  have 
been  regarded  as  a  matter  of  course,  and  is  not  expressly 
mentioned,  nor  is  anything  directly  said  in  the  charter  of 
the  right  to  establish  religion  by  law,  which  was  fully  acted 
on  some  forty-five  years  afterwards,  although  the  general 
assembly  had  powers  given  to  it  to  "dispose"  of  matters  not 
mentioned,  whereby  the  inhabitants  might  be  religiously  and 
civilly  governed.  Under  this  highly  i)opular  government 
elections  were  held  for  "assistants"  and  representatives 


DEMOCRACY  AND  DEMOCRACIES. 


141 


twice  a  year  and  for  executive  officers  once.  Yet  simplicity 
of  life  and  the  absence  to  a  great  extent  of  public  agitations, 
together  with  the  sober  religious  character  and  homogeneous 
English  descent  of  the  people,  produced  a  steadiness  of  habits 
which  made  these  semi-annual  elections  and  the  annual  elec- 
tions of  judges  almost  forms.  The  same  persons  were  chosen 
over  and  over  again.  In  one  instance  a  representative  was 
chosen  by  his  town  for  seventy-two  sessions  or  thirty-six 
years  for  the  general  assembly;  and  three  secretaries  of  state 
filled  that  office  for  ninety-seven  years  in  succession  from 
1712  onward.  Three  treasurers  had  an  official  life  of  nineteen, 
thirty-seven  and  thirty-one  years  respectively  ;  and  the  terms 
of  eight  governors  amounted  to  eighty-three  years.  This  is 
a  favorable  specimen  of  the  colonial  and  post-revolutionary 
governments,  but  the  contrast  in  all  the  colonies  between  the 
steadiness  of  habits  and  modern  fluctuations  has  been  very 
considerable. 

The  change  in  the  habits  of  American  democracies  which 
the  last  seventy-five  years  have  brought  with  them  is  exceed- 
ingly great.  The  leading  causes  of  this  change  arc  three  : 
the  changes  in  the  condition  of  society  as  it  respects  wealth, 
diversity  of  employment,  and  the  growth  of  cities;  the  infu- 
sion of  new  elements,  especially  from  the  lower  classes  of 
Europe  ;  and  the  gradual  reception  of  doctrines  of  political 
rights,  which  belong  to  extreme  democracy.  They  are  seen 
in  such  doctrines  as  these  :  that  office  should  be  held  for  a  short 
term  in  order  to  let  the  people  use  their  power  the  oftener; 
that  judges  should  be  elected  by  the  people,  and  not  for  life 
but  for  short  terms ;  that  the  representative  is  bound  to  obey 
his  constituents'  will  ;  that  the  triumph  of  a  party  must  be 
followed  by  a  general  sweep  of  officials  of  the  defeated  party 
out  of  power ;  that  election  districts  must  have  an  equality 
of  numbers  as  nearly  as  possible.  These  or  most  of  thcni 
having  been  referred  to  before,  are  only  mentioned.  In  their 
company  appear  bribery,  ballot-stuffing,  intimidation  of  elect- 
ors, violence  at  the  polls,  a  general  lowering  of  the  charac- 
ter of  candidates  for  public  places,  the  caucus-system,  and 


142 


POLITICAL  SCIENCE. 


neglect,  oa  the  part  of  many,  of  their  pohtical  duties.  With- 
out the  verging  of  doctrine  toward  extreme  democracy,  most 
of  these  evils  would  be  slight,  yet  the  contrast  seems  to  show 
that  no  political  institutions  of  liberty  can  stand  their  ground 
against  social  changes.  We  find  now  that  men  who  are  uni- 
versally believed  to  have  paid  money  to  the  electors  or  to  the 
legislatures  hold  up  their  heads,  and  the  crime  is  seldom 
noticed,  less  frequently  brought  to  light. 

Doctrine  in  politics  has  had  a  much  wider  sweep  in  France, 
and  indeed  elsewhere  in  Europe,  but,  owing  to  the  tendencies 
towards  extreme  measures,  such  as  the  people  voting  in  a  ty- 
rant, and  to  the  ill-success  of  democratic  government  there 
on  the  whole,  the  national  feeling  is  becoming  by  experience 
more  practical  in  its  aims  and  judgments.  The  great  funda- 
mental principle  of  practical  politics  is  now  more  admitted 
than  it  was  once,  namely,  that  governments  in  their  forms  are 
not  to  be  judged  of  on  theory  alone,  because  they  present  a 
balance  of  powers  and  equitable  adjustment  of  claims,  but 
by  their  capacity  to  hold  their  ground  in  a  nation  and  to 
secure  national  happiness. 

Modern  theories  of  communism,  which  have  had  their  hot- 
bed in  great  French  centres  of  population,  but  are  diffused 
more  or  less  over  the  rest  of  the  Christian  world,  show  the 
fanatical  power  of  political  dogma  in  its  worst  form.  The 
ancient  city-states  were  sometimes  infested  by  cries  for  a  new 
division  of  property,  but  the  prevalence  of  slavery  and  of 
slaves  from  abroad  prevented  this  evil,  if  it  brought  others. 
As  this  is  a  theory  which  will  infallibly  lead  to  intestine  war, 
and  has  a  plausible  side,  its  obvious  leadings  are  calculated 
to  produce  greater  distrust  of  democratic  principles  than  all 
other  parts  of  extreme  democracy. 

Connected  with  the  differences  as  it  respects  speculation  in 
the  two  countries  which  we  have  selected  as  types  of  mod- 
ern democracy,  is  the  greater  rigor  of  the  French  in  pulling 
down  everything  that  stands  in  the  way  of  theory,  which  may 
l)c  described  as  the  sacrifice  of  other  consitlerations  to  logical 
deduction  and  to  system.    They  demand  the  aritlunetical 


DEMOCRACY  AND  DEMOCRACIES. 


143 


equality  of  which  Plato  speaks,  rather  than  the  geometri- 
cal. We  lean  in  the  same  direction,  but  are  not  so  greatly- 
shocked  at  institutions  which  do  not  conform  strictly  to  the 
rule.  The  equal  power  of  states  greatly  unequal  in  size,  in 
•the  senate,  is  a  standing  protest  against  sacrificing  everything 
to  exactness  of  measure  in  politics.  This  will  probably  hold 
its  own,  however,  not  because  of  its  being  received,  but 
because  of  the  obvious  justice  with  which  the  small  states 
demanded  it,  and  their  unwillingness  to  come  under  the  con- 
stitution on  any  other  condition.  Of  inequalities  of  repre- 
sentation within  the  States,  there  have  been  a  few,  but  they 
have  created  no  practical  difficulty.  In  South  Carolina, 
formerly  the  lower  or  seaboard  districts  had  much  more  poli- 
tical power  than  the  upland  ones.  At  present,  in  Connecti- 
cut the  agricultural  towns  have  far  more  than  their  share  of 
power  in  the  legislature,  owmg  in  part  to  their  decrease,  and 
to  the  great  increase  of  the  cities  and  large  towns  in  population 
and  wealth.  The  districts  for  choosing  senators,  twenty-one 
in  number,  range  in  their  population  from  fifty-four  and  fifty- 
nine  thousand,  to  about  fourteen,  thirteen,  and  nine  thou- 
sand. In  the  house  of  representatives,  40  members  from 
twenty-two  towns,  in  1873,  represented  270,000  inhabitants, 
while  202  members  from  107  towns  represented  267,000. 
The  three  largest  cities  at  the  same  time  sent  five  members 
in  all  to  the  house,  while  they  contained  one-fifth  of  the  entire 
population.  The  largest  city,  with  nearly  51,000  inhabitants, 
sends  two  representatives  equally  with  a  little  town  contain- 
ing only  627.  And  the  inequalities  in  the  representation  of 
wealth  are  still  greater.  These  disproportions  are  too  great 
not  to  cure  themselves  in  the  end,  but  the  practical  difficul- 
ties to  which  they  give  rise  are  not  serious,  because  the  sm.ill 
towns  are  scattered  all  over  the  commonwealth,  and  liave  no 
common  interests  unless  to  keep  down  taxation.  On  tliis 
subject  Mr.  Freeman  (Hist.  Essays,  ii.,  p  265)  well  rcm.irks 
that  "  the  greater  the  constituency  is,  the  fewer  members  it 
needs  in  proportion  to  its  numl)ers,  because  it  has  greater 
means  of  influencing  parliament  and  the  country  in  other 


144 


POLITICAL  SCIENCE. 


ways.  The  interests  of  the  smaller  constituencies  need  there- 
fore to  be  protected,  by  giving  them  a  proportionately  larger 
number  of  members."  To  which  it  may  be  added,  that  as 
all  represent  the  whole  community,  the  question  who  shall 
choose  them,  and  in  what  way,  is  more  to  be  decided  by  prac-  ■ 
tice  than  by  theory. 

The  ancient  democracies — small  in  size,  with  a  concentrated 
population,  susceptible  of  intense  excitements,  having  no 
definite  notion  of  personal  rights,  often  ready  to  play  the 
tyrant  (like  other  forms  of  power),  when  they  had  secure  pos- 
session of  the  state  without  checks  and  breaks  such  a:s  the 
representative  system  furnishes — are  not  that  form  of  popular 
government  which  can  fairly  be  used  as  the  test  of  demo- 
cratic principles.  A  country  where  all,  or  nearly  all,  are 
landholders,  where  intelligence  is  diffused,  and  action  under 
excitement  over  a  large  territory  is  very  difficult, — above 
all,  where  the  religious  and  social  condition  is  good, — will, 
for  a  long  time,  thrive  under  the  stimulating  atmosphere  of 
democracy.  Those  who  wish  to  rise  in  the  world  will  feel 
that  it  affords  all  helps  which  they  need.  Personal  rights, 
free  choice  of  employments,  all  the  advantages  that  a  govern- 
ment can  secure,  are  secured  for  them.  Under  favorable  cir- 
cumstances a  democratic  republic  may  be  one  of  the  quietest 
and  steadiest  of  governments.  But  it  is  that  one  which  feels 
most  the  changes  in  society,  particularly  the  changes  in  wealth 
and  moral  principle.  It  is  that  one  which,  when  the  self- 
governing  power  is  lost,  crumbles  to  pieces,  or  is  subject  to 
a  power  above  its  own,  most  easily.  As  long  as  equality  of 
condition  and  simplicity  of  life  remain,  it  secures  content- 
ment, manliness,  self-restraint,  and  obedience  to  law,  such  as 
are  nowhere  else  to  be  found.  But  the  changes  in  society, 
changes  which  men  can  neither  prevent  nor  foresee,  are  stron- 
ger than  constitutions.  The  principle  of  representation,  in- 
deed, it  would  appear,  is  the  most  valuable  improvement  in 
politics  that  has  been  made  by  the  modern  world,  and  recon- 
ciles order  with  freedom  more  effectually  than  bayonets  or 
spies.    But  neither  representation  nor  any  other  conservative 


DEMOCRACY  AND  DEMOCRACIES. 


145 


force  lying  in  institutions  can  save  a  government  by  the  peo- 
ple and  for  the  people  from  the  decay  and  disintegration 
which  attends  on  a  society  without  moral  principle  and  with- 
out hope.    (Comp.      274,  276.) 


VOL,  II.— 10 


CHAPTER  VII. 


COMPOSITE  GOVERNMENTS,  GOVERNMENT  OF  COLONIES. 

§  203. 

Besides  the  states  which  we  have  now  considered,  as  hav- 
Composite  gov-  iHg  a  simplc  form  of  polity,  there  are  those 
ernments.  which  may  be  called  composite  or  compound. 

By  this  term,  which  we  venture  to  use  as  including  for  con- 
venience a  number  of  forms  of  union  between  political  parts 
under  one  whole,  we  do  not  intend  to  express  any  logical 
order  or  close  connection  of  the  different  unions  which  will 
come  before  our  view,  but  only  to  arrange  them  under  a  not 
inapposite  general  term.  Among  these  forms  confederations 
would  take  the  precedence  historically ;  but  we  prefer  an- 
other order,  especially  for  the  reason  that  the  earlier  confed- 
erations did  not  reach  the  solidity  of  states,  being  no  more,  the 
greater  part  of  them,  than  mere  leagues.  On  the  other  hand, 
all  the  great  empires  formed  by  conquest  embrace  under  one 
head  a  number  of  states  having  little  or  no  coherence  with 
one  another,  except  as  being  all  under  one  head.  And  the 
relation  to  the  head  may  have  been  not  very  close,  nothing 
perhaps,  besides  acknowledging  the  great  conqueror  as  their 
lord,  and  paying  him  a  tribute.  The  national  feelings  of 
the  conquered,  or  the  difficulties  in  the  ruling  country,  or  the 
ambition  of  a  deposed  line  may  have  broken  that  union,  and 
rendered  another  conquest  necessary  for  its  restoration.  The 
history  of  conquests  makes  up  a  large  part  of  our  knowledge 
of  some  nations.  Thus,  the  annals  opened  to  us  at  the  pres- 
ent day,  by  the  scholars  who  have  deciphered  and  revealed 
Assyrian  history,  reveal  conflicts  often  repeated  by  the  kings 
of  that  country  over  a  multitude  of  little  states,  many  of  which 
cannot  now  even  be  identified.    Tribute  in  great  part  is  the 


COMPOSITE  GOVERNMENTS. 


147 


end,  the  kinglets  of  native  stock  are  often  continued,  or  on  a 
second  rebellion  they  are  taken  captives  and  another  line  put 
in  their  place  ;  but,  in  general,  the  usages,  the  religion,  the 
language,  and  all  that  constitutes  nationality  except  self-gov- 
ernment, remained  as  before.  Sometimes,  when  a  conquered 
province  had  been  very  rebellious,  or  lay  in  a  position  where 
it  could  impede  the  conqueror's  progress,  the  cruel  expedi- 
ent was  adopted,  which  Assyria  and  Babylon  tried  with  the 
Jews  and  others,  of  deportation  to  another  territory,  where, 
although  living  to  a  degree  together,  they  could  not  be 
dangerous.* 

This  is  the  first  form  of  compound  governments,  where 
provinces  or  nationalities  are  conquered,  but  not  absorbed  nor 
incorporated  into  the  conquering  nation.  The  good  effects 
of  such  a  connection  cannot  be  very  great  for  there  is  no 
unifying  process  going  forward,  and  no  such  was  aimed  at. 
It  no  doubt  was  important  for  the  commerce  of  the  world 
that  through  the  sway  of  large  states  over  weak  ones,  men 
could  travel  and  trade  with  more  safety  over  large  territories, 
but  no  institutions,  no  awakening  of  the  human  mind  come 
directly  from  such  movements. 

The  relations  between  a  state  and  another  organized  body 
or  another  state,  included  in  this  chapter,  may  be  reduced  to 
unions  which  implied  subjection  of  one  party,  and  those  formed 
on  terms  of  equality.  Under  the  first  of  these  divisions,  may 
be  arranged  that  condition  of  things  which  allowed  a  conquered 
or  protected  state  some  degree  of  self-government,  whether 
under  independent  rulers  or  in  the  form  of  provinces  ;  and 
that  relation  of  a  mother-country  to  its  colonies  in  which  a 
greater  or  a  less  degree  of  self  government  is  accorded  to 
them.  In  the  second  class,  confederations  in  their  two  forms 
may  ije  placed,  together  with  states  otherwise  nearly  or  quite 
separate,  except  that  they  arc  under  a  common  sovereign. 

*  For  tlie  Assyrian  history,  Gl-o.  .Smith's  .Assiirlianipal,  and  especi- 
ally J.  Mcnaiit's  "  Annales  dcs  niis  d'  Assyi  ic"  M'aris,  1874),  may  be 
consulted.  This  work  gives  a  lively  picture  of  conquests  of  the  same 
territory  made  over  and  over  again. 


148 


POLITICAL  SCIENCE. 


From  the  latter  those  organizations  differ,  where  sovereign 
and  legislature  are  common  to  two  or  more  states,  and  all 
things  tend  to  bring  them  into  one  consolidated  form.  Swe- 
den and  Norway  since  1814,  Great  Britain  and  Ireland,  after 
the  union  of  1800,  may  serve  as  types  of  the  former  ;  the 
three  constituent  parts  of  the  United  kingdom  of  Great  Bri- 
tain and  Ireland,  of  the  latter.  As  this  kind  of  union  is  rare 
and  of  little  practical  importance,  we  may  pass  it  by  in 
silence. 

We  will  look  first  at  the  compages  of  the  Persian  empire, 
and,  in  passing,  at  the  Macedonian  system  in  regard  to  subject 
states  ;  then  somewhat  more  at  large  at  the  plan  of  Rome  in 
regard  to  her  colonies  and  conquests.  In  modern  times  the 
policy  of  Spain  and  England  will  call  for  our  attention,  after 
which  the  principal  subject  of  this  chapter,  confederations, 
will  be  considered. 

Under  Darius  Hystaspes,  the  administration  of  the  empire 
took  the  shape  which  it  retained  ever  after- 

Persian  empire.  ,  t        i  i-    •   ■  r  i 

wards.  In  the  year  515  B.  C,  a  division  01  the 
dominions  was  made  into  twenty  provinces,  the  presiding 
officer  over  each  of  which  was  called  a  satrap  or  protector  of 
the  country.*  Some  of  these  satrapies  were  vast  in  extent 
and  population  ;  thus  Assyria  and  Babylonia  formed  one, 
and  /Egypt  with  Gyrene  and  Barca  another.  Subordinate 
divisions  were  made  in  some  of  them,  and  their  principal 
officer  received  the  name  of  a  pcchali,  which  is  applied  to 
Zerubbabel  and  Nehemiah,  governors  of  Judah,  and  may  be 
the  origin  of  the  modern  title  of  pasha.  The  satraps  would 
have  become  independent  sovereigns,  if  care  had  not  been 
taken  first  to  appoint  to  this  office,  for  the  most  part,  Persians 
educated  at  the  court,  and  then  to  inspect  their  administra- 
tion continually  both  in  public  and  in  secret  ways.    An  un 

*  Bcrthcau  on  Ezra  viii.,  36,  interprets  the  Persian  word  Kshatia- 
jiavan  as  meaning  guardian  of  tlie  lantl  ;  Duncker,  (lesch.  d.  Al- 
tertli.,  ii.,  890,  as  guardian  of  tlie  kingdom.  Col.  Rawlinson  derives 
it  from  Kshatram,  crown  or  empire,  and  pa,  keeper,  preseiver. 
Comp.  Prof.  Ravvlinson's  note  on  Herodot.,  i.,  192. 


COMPOSITE  GOVERNMENTS. 


149 


faithful  or  rebellious  satrap  might  be  seized  and  executed 
without  trial  by  some  commissioner  from  the  great  king. 
Constant  inspection  was  practiced  through  commissaries  sent 
every  year  over  the  provinces,  with  power  to  remove  abuses, 
and  obligation  to  report  to  the  king.  This  natural  institution 
reminds  one  of  the  inissi  rcgii  of  Charlemagne.  Besides 
these  there  was  associated  with  each  of  the  governors  (Hero- 
dot.,  iii.,  128)  a  royal  scribe,  who  received  letters  and  seems 
to  have  been  a  sort  of  spy  on  his  principal.  The  officers, 
also,  who  were  called  the  eye  and  tlie  ear  of  the  king  seem 
to  have  inspected  the  conduct  of  the  officials  through  the 
empire,  the  latter,  pursuing  more  a  system  of  secret  espionage 
than  the  other.  And  the  separation  of  military  from  civil 
power  in  the  original  plan  of  the  administration,  which  was 
extensively  given  up  afterwards,  was  another  check  on  the 
satrap  to  whom  the  civil  relations  with  the  provinces  were 
intrusted.  A  system  of  posts  for  the  use  of  government 
officers  must  have  greatly  aided  the  central  administration. 
(Esther  iii.,  13,  15,  Herodot.,  viii.,  98.)  With  all  these 
checks  the  governors  were  often  unfaithful  or  misused  their 
almost  regal  power. 

The  policy  of  Persia  was,  like  that  of  other  great  oriental 
despotisms,  to  leave  the  conquered  nations  in  the  enjoyment 
of  their  own  laws,  and  the  local  officers  in  possession  of  their 
former  power.  The  Greek  towns  in  Ionia  and  the  islands 
were  for  the  most  part  undisturbed  in  their  polity,  and  the 
tyrants  who  were  masters  of  some  of  them  were  found  a  con- 
venient medium  of  communication  with  the  people.  When, 
however,  Mardonius  on  the  first  expedition  into  Europe  in  492 
came  down  to  the  coast  with  his  army,  he  put  down  the  tyrants 
of  the  Greek  towns  and  established  democratical  constitutions, 
the  chiefs  of  the  cities  having  not  long  bcfure  showed  them- 
selves altogether  untrustworthy.  (Herodot.,  v.,  37,  vi.,  43.) 

The  great  object  in  the  Persian  empire  was  to  collect  from 
the  provinces  as  large  a  tribute  as  was  prissible,  either  in  ])r<)- 
ducts  of  the  soil,  as  was  generally  the  case  in  the  inland 
territories,  or  in  silver  or  gold  as  was  the  custom  in  com 


POLITICAL  SCIENCE. 


mercial  Ionia.  Until  Darius,  no  fixed  tribute  had  been  levied, 
only  gifts  were  offered.  Herodotus  (ii.,  90-94)  gives  the 
sums  which  were  paid  by  the  several  satrapies,  which  are 
almost  all  reckoned  in  money.  Thus  the  first  satrapy,  com- 
prehending with  Ionia  several  adjoining  districts,  paid  400 
talents  ($400,000)  ;  Phenicia,  Palestine  and  Cyprus,  forming 
the  fifth  satrapy.  350 ;  Egypt  with  adjoining  parts  of  Libya, 
Cyrene  and  Barca,  700,  together  with  the  profits  of  the  fisher- 
ies in  lake  Mceris,  and  grain  furnished  to  120,000  Persians  at 
Memphis  ;  India  the  largest  tribute  of  350  talents  [weight] 
of  gold  dust.  The  whole  revenue,  amounting  at  first,  to 
about  fifteen  millions  of  dollars,  does  not  speak  of  a  heavy 
taxation.  Later  it  was  somewhat  increased.  And  perhaps 
local  payments  may  have  been  made,  for  a  time  or  as  a  rule, 
for  the  support  of  the  army  and  for  other  purposes.  Media 
rendered  100,000  sheep  besides  a  number  of  mules  and 
horses  ;  Cappadocia,  half  as  many  ;  Armenia,  20,000  colts  ; 
Cilicia,  360  white  horses  and  140  talents.  The  main  object 
of  the  whole  arrangement,  says  Prof.  Rawlinson  (Anc. 
Mon.,  iii.,  421),  was  evidently  the  taxation  of  each  province 
proportionate  to  its  wealth  and  resources. 

Taking  everything  into  account,  we  are  led  to  judge  that 
Prof.  Rawlinson  accords  with  the  truth  when  he  says  that 
"it  would  seem  that  while  the  caprice  and  cruelty  of  the 
kings  rendered  the  condition  of  the  satraps  and  other  great 
men  as  bad  as  it  has  ever  been  under  the  worst  of  the  orien- 
tal despotisms,  the  oppression  of  the  masses  was  lighter  than 
at  almost  any  other  period  in  eastern  history."  There  was  not, 
however,  anything  civilizing  or  uniting  in  the  way  in  which 
the  Persians  managed  the  territory  conquered  by  their  arms.* 

When  Alexander  put  Greek  power  in  the  place  of  Persian 
Macedonian  sys-  powcr,  his  carly  dcatli  and  the  breaking  up  of 
his  empire  prevented  the  development  of  any 
change  of  government  in  the  provinces.    The  policj'  however 

*  Comp.  Hecrcn,  Ideen,  Rawlinson,  Trans),  of  Horodot.  Api)encl. 
to  Book,  iii.,  Essay,  3  ;  his  Ancient  Monarchies,  iii.,  417,  onw.  Bun- 
ker, u.  s.,  i.,  884  onw.  (ed.  3.) 


COMPOSITE  GOVERNMENTS. 


of  Alexander  went  far  beyond  that  of  the  Persian  kings,  in 
respect  to  the  founding  of  cities,  seventy-two  of  which  are 
said  by  Plutarch  to  have  owed  their  origin  to  him.  But 
these  or  as  many  as  he  planted,  for  the  number  may  be 
a  gross  exaggeration  (Comp.  Grote,  xii.,  360),  were  built 
chiefly  for  military  security,  and  not  with  the  direct  purpose 
of  Hellenizing  the  conquered  provinces.  Seleucus  Nicator, 
to  whom  Syria  and  all  the  east  at  length  fell,  divided  up  his 
realm  into  seventy-two  satrapies,  and  established  colonies  on 
an  extensive  scale.  That  under  the  Syrian  kings  Hellenic 
culture  penetrated  to  some  degree  into  the  remote  east,  may 
be  gathered  even  from  the  style  of  the  coins  there  found. 
But  Seleucus  and  his  successors  governed  through  Greeks, 
and  did  not  aim  to  conciliate  their  oriental  subjects,  so  that 
their  hold  on  the  east  was  of  short  duration.  Alexander,  on 
the  other  hand,  would  have  endeavored  to  suit  his  adminis- 
tration to  his  oriental  position  and  subjects,  and  would  have 
disgusted  his  Greeks,  as  indeed  he  did  disgust  them,  by  his 
oriental  pride  and  luxury  before  his  death. 

The  Romans  conquered  an  immense  number  of  nationali- 
ties, and  pursued  a  policy  at  once  steady  and 

The  Romans.  >  I  f        J  } 

adapted  to  the  circumstances  of  the  time  and 
the  conquered  people.  At  an  early  period  colonies  of  Roman 
citizens  were  established  on  newly  acquired  territory  in  Italy, 
originally  along  the  coast,  to  serve  at  once  as  supports  of 
Roman  power  and  as  helps  to  the  poorer  classes  in  the  parent 
state.  Almost  always  a  colony  was  sent  to  a  place  formerly 
occupied  and  was  not  altogether  a  new  foundation.  Dionys. 
Hal.,  ii.,  §  16,  represents  the  policy  to  have  been  "not  to 
visit  the  captured  cities  with  wholesale  slaughter,  but  to  send 
settlers  into  them  on  condition  of  holding  a  certain  portion 
of  the  lands,  and  to  make  the  places  thus  conquered  Roman 
colonies,  to  some  of  which  citizenship  was  imparted."  This 
describes  the  policy  from  the  first.  These  colonists,  how- 
ever, formed  simple  dependencies  with  local  rights,  but  with- 
out any  of  the  political  rights  of  citizens  after  the  first  settlors 
had  passed  away.    The  later  colonics  planted  in  noi'thcrn 


152 


POLITICAL  SCIENCE, 


Italy,  about  thirty-four  in  all,  were  called  Latin  colonies,  and 
had  no  privilege  of  acquiring  the  right  of  eligibility  to  office 
in  case  of  a  removal  to  Rome,  but  had  a  limited  right  of  suf- 
frage with  other  political  rights  and  duties.  (Comp.  Momm- 
sen,  i.,  538,  440.)  The  colonists  in  northern  Italy,  after  the 
establishment  in  B.  C.  181,  of  Aquileia,  a  Latin  colony,  re- 
ceived full  Roman  rights.  One  of  the  measures  of  Caius 
Gracchus,  B.  C.  122,  was  to  send  six  thousand  colonists  to 
make  a  new  settlement  on  the  site  of  Carthage,  with  the 
rights  of  a  Roman  burgess-colony.  This  was  important  as 
"  establishing  the  principle  of  emigration  across  the  sea  and 
opening  up  for  the  Italian  proletariat  a  permanent  outlet." 
(Mommsen,  iii.,  138  )  Soon  afterwards,  Narbo  in  Gaul,  be- 
yond the  Alps,  was  founded  (b.  C.  i  18).  During  the  predomi- 
nance of  Sulla,  vast  tracts  in  middle  Italy  were  assigned  to 
soldiers,  on  the  plan,  however,  of  attaching  them  to  a  muni- 
cipiian  already  existing.  Julius  Caesar  pursued  the  policy  of 
converting  the  soldiers  whose  term  of  service  was  over  into 
agricultural  colonists,  and  in  order  to  empty  Rome  of  its 
poorer  class  he  designed  to  send  out  beyond  the  seas  eighty 
thousand  settlers  of  this  description.  The  triumvirs  in  B.  C.  43, 
promised  to  give  up  to  their  soldiers  eighteen  Italian  towns, 
and  after  the  battle  of  Philippi  one  hundred  and  seventy 
thousand  men  were  to  be  provided  for.  The  people  of  the 
towns  just  spoken  of  seem  to  have  been  forced  to  give  up 
their  landed  property  in  the  way  of  a  forced  sale,  but  the 
price  was  never  paid  out  of  the  treasury.  Augustus  planted 
a  large  number  of  colonies  in  Africa,  Sicily,  Macedonia,  both 
Spains,  Achaia,  Asia,  Syria,  Gallia  Narbonnensis,  Pisidia, 
properly  consisting  of  veteran  soldiers,  and  called  military 
colonies,  but  containing  also  numbers  of  the  poorest  class  in 
the  city  and  in  Italy.  Other  emperors,  as  Claudius  and 
Ncrva,  followed  the  example.  Trajan  sent  great  multitudes 
of  men  into  Dacia  which  had  been  depopulated  by  the  wars 
of  Decebalus.  Although  these  settlers  came  ex  toto  orbe  Ro- 
mano, as  an  old  writer  says,  yet  the  power  of  Roman  civiliza- 
tion \%  expressed  in  the  fact  that  the  VV'alachian  language 


« 


COMPOSITE  GOVERNMENTS. 


owes  its  origin  to  the  Romans  settled  in  Dacia  at  that  period. 
Nor  can  we  doubt  that  colonies  and  settlements  of  Romans 
in  Spain  and  Gaul,  together  with  soldiers  returning  there,  did 
much  towards  helping  the  dialects  derived  from  the  Latin  in 
those  countries  to  take  root.  The  Roman  colonies  then  owed 
their  foundations  to  several  motives  ;  first,  to  the  desire  of 
protecting  the  territories  won  by  war ;  next,  to  that  of  re- 
moving the  pauper  class  from  Rome  ;  and  afterwards,  to  that 
of  scattering  abroad  and  giving  rewards  to  soldiers,  which 
rewards  were  a  stimulus  to  future  enlistments.*  The  influ- 
ence of  the  system,  which  was  essentially  administrative  and 
political  without  commercial  motives,  was  to  spread  the  laws, 
language,  turn  of  thinking  of  Rome,  and  to  help  in  consoli- 
dating the  empire. 

The  treatment  of  the  people  in  the  provinces  is  so  vast  a 
subject  that  only  a  faint  and  diminished  outline  of  it  can  be 
exhibited. 

A  province,  in  the  local  sense  of  the  word  provincia,  de- 
noted a  land  subjugated  in  war  and  placed  under  the  adminis- 
tration of  a  Roman  governor,  a  proconsul  or  propraetor,  or, 
under  Augustus,  after  the  division  between  senatorial  and  im- 
perial provinces  took  effect,  cither  governed  by  the  emperor's 
vicars  bearing  different  names,  or,  where  they  needed  no 
military  control,  by  the  senate,  as  before  the  institution  of  the 
empire.  The  first  that  was  ever  established  was  Sicily,  in 
241  B.  C.  ;  at  the  death  of  Augustus  there  were  about  thirty; 
a  little  after  the  end  of  the  first  Christian  century,  some  forty- 
six  or  forty-seven.  As  a  general  rule  at  first,  the  conquering 
officer  with  a  delegation  of  ten  senators,  acting  according  to 
instructions  of  the  senate,  laid  down  the  platform  which  was 
to  serve  for  the  future  government  of  the  province.  In  the 
instance  of  Sicily  this  was  not  done  for  many  years  subsequent 
to  the  first  occui)ation  ;  but  the  later  provinces,  when  the 
plan  had  been  adopted,  were  remodelled  soon  after  their  sub- 

•Conip.  esp.  Marquardt  in  Bckker — Marcj.,  iii.,  i,  311,  and 
Zuinpt's  coinincntatioiiL-s  epigraph. 


154 


POLITICAL  SCIENCE. 


mission  to  the  power  of  Rome.    Thus  ^milius  Paullus  with 
ten  legates  reconstructed  Macedonia  soon  after  the  battle  of 
Pydna,  in  B.  C.  i68  ;  and  at  the  same  time,  with  the  inter- 
vention of  five  legates,  Illyricum  was  reduced  to  its  provincial 
condition.    In  every  case  a  policy  was  followed  of  prevent- 
ing insurrections  afterward  ;  and  provinces  which  had  given 
trouble  or  contained  the  seeds  of  future  disturbance  were 
jealously  dealt  with.    Thus  it  was  ordained  in  the  case  of 
Macedonia  that  the  country  should  be  broken  up  into  four 
regions,  each  having  its  own  council,  and  composed  of  parts 
confederated  together,  which,  with  the  communities  compos- 
ing them,  were  left  to  tax  themselves.    Half  of  the  annual 
proceeds  of  the  former  land-tax,  paid  to  the  kings,  was  now 
paid  to  the  Romans,  that  is,  one  hundred  talents.    The  former 
domains  and  the  mines,  which  naturally  fell  to  the  conquerors, 
were  utilized  by  them.    All  officials  of  the  deposed  king, 
Perseus,  had  to  go  into  banishment  to  Italy.    Salt  could  not 
be  imported  nor  timber  exported.    The  people  were  disarmed 
and  the  fortress  of  Demetrias  destroyed.    Intermarriages  and 
purchases  of  houses  and  lands  between  the  different  regions 
were  prohibited.    As  for  the  rest,  the  laws  were  continued 
and  the  communities  elected  their  officers,  but  the  upper  class, 
both  in  the  regions  and  the  communities,  were  put  into  pos- 
session of  the  government.    Much  the  same  course  was  pur- 
sued at  the  same  time  with  Illyricum,  which  was  broken  up 
into  three  parts.*    Livy's  observations  on  these  transactions 
are  worth  noticing,  on  account  of  their  looking  aside  from  the 
evident  motive  of  the  conqueror.    "  It  seemed  good  that 
Macedonians  and  Illyrians  should  be  free  in  order  that  all  the 
nations  might  perceive  that  the  arms  of  the  Roman  people 
did  not  bring  slavery  to  the  free  but  freedom  to  the  enslaved  ; 
so  that  the  nations  which  were  in  the  enjoyment  of  liberty 
might  believe  that  it  would  be  secure  for  them  and  under  a 

*  Comp.  Mommsen's  hist.,  u.  s.,  ii.,  357,  onw.,  in  the  transl., 
Livy  xlv.,  §  18,  with  Weissenborn's  notes  and  §  29,  Marquardt,  u.  s., 
iii.,  I,  p.  115. 


COMPOSITE  GOVERNMENTS. 


perpetual  guardianship,  and  that  those  which  Hved  under 
kings  might  beheve  that  they  would  find  these  kings  for  the 
present  milder  and  juster,  out  of  consideration  of  the  Romans, 
and  that,  if  at  any  time  war  should  break  out  between  these 
kings  and  the  Roman  people,  its  issue,  while  it  would  bring 
victory  to  the  Romans,  would  bring  liberty  to  them."  That 
among  other  considerations,  the  impression  to  be  made  on 
other  nations  was  a  motive  is  unquestionable,  but  these  Mace- 
donians who  could  not  buy  a  house  out  of  their  own  district 
were  certainly  free  within  but  a  small  territory,  and  in  this, 
as  in  every  case,  the  policy  of  easily  managing  and  easily 
spreading  conquests  was  the  main  consideration. 

The  treatment  of  other  Greek  states  shows  the  same  entirely 
selfish  policy,  and  none  more  than  that  of  Rhodes,  which  had 
been  a  privileged  ally  of  Rome,  and  had  abstained  from  all 
sympathy  with  Macedonia  in  its  last  struggles.  The  Rhodi- 
ans,  owing  to  an  ill-advised  attempt  on  their  part,  suggested 
by  a  Roman  officer,  to  act  as  mediators  between  Perseus  and 
Rome,  incurred  the  displeasure  of  the  senate,  their  possessions 
on  the  mainland  were  taken  from  them,  which  yielded  one 
hundred  and  twenty  talents  annually,  and  irritating  obstruc- 
tions were  placed  in  the  way  of  their  commerce.  The  island 
subsequently  received  harsh  and  mild  treatment  from  Rome 
by  turns.  Under  Claudius,  as  Tacitus  says,  "  liberty  was 
restored  to  the  Rhodians,  having  been  often  taken  away  or 
confirmed  according  to  their  merits  in  foreign  wars  or  their 
ill-conduct  in  domestic  seditions."  (Annal.  xii.,  58.)  In  the 
same  passage  it  is  said  that  the  inhabitants  of  Ilium  at  the 
same  time  were  freed  from  every  public  obligation  or  service. 
This  favored  place,  the  home  of  the  mythical  ancestors  of 
Rome,  had  been  exempted  from  paying  tribute  by  Julius 
CiEsar,  who  also  enlarged  their  territory — privileges  which  re- 
mained for  some  length  of  time  afterward. 

The  system  of  provincial  rule,  complicated  in  itself,  was 
made  further  so  by  the  exemptions  or  privileges  granted  to 
certain  places.  Most  of  these  places  were  situated  in  the 
Greek-speaking  part  of  the  empire,  as  in  Sicily,  Achaia  and 


156 


POLITICAL  SCIENCE. 


the  province  of  Asia.  They  have  been  divided,  in  respect  to 
their  relations  to  the  supreme  power  at  Rome,  into  several 
classes.  The  most  privileged  class  was  that  of  the  free  and 
allied  cities.  They  were  such  as  had  freely  united  them- 
selves to  the  Romans  by  a  formal  league,  and  were  but  few 
in  number.  Next  to  the  civitates  liberce  ct  feedcratce  were  the 
liberce  which  derived  their  freedom  not  from  a  covenant  but 
from  a  law  or  a  decree  of  the  Roman  senate.  This  was 
given  (to  use  Marquardt's  expression),  "  as  a  reward  for  their 
adhesion  to  Rome  or  their  voluntary  submission.  Being  tied 
to  the  policy  of  Rome  by  their  privileges,  they  secured  the 
influence  of  the  Romans  in  a  land  as  yet  incompletely  sub- 
jugated." *  And  a  motive  forgiving  the  privilege,  no  doubt, 
was  to  divide  the  land  where  they  lay  by  an  inequality  of 
rights,  so  that  the  favored  cities  might  dread  any  revolutions 
that  would  detach  them  from  the  conquering  power,  and  the 
unity  of  the  territory  might  be  broken.  The  most  essential 
of  their  rights  were  exemption  from  a  Roman  garrison,  free- 
dom from  a  land  tax,  and  jurisdiction  under  their  own  offi- 
cers and  by  their  own  laws,  but  they  were  generally  bound  to 
make  certain  payments  to  the  Roman  people.  The  free  and 
untaxed  cities  were  exempt  from  tribute ;  but  another  class 
of  towns,  the  civitates  stipendiarice  were  subject  to  taxation 
at  the  discretion  of  the  Romans.  But  even  these  were  not 
entirely  deprived  of  their  old  institutions,  of  a  popular 
assembly,  of  magistrates  elected  by  a  domestic  senate,  and  to 
some  degree  of  their  own  laws  ;  they  were  subject,  however, 
to  the  interference  of  the  provincial  governors.  These  vari- 
ous conditions  of  the  cities  in  conquered  provinces,  for  the 
minutia:  of  whose  rights  the  archaeologists  must  be  consulted, 
show  that  the  Romans  pursued  varying  plans  of  policy,  on 
the  whole  leaving  to  the  cities  a  greater  or  less  enjoyment  of 
their  former  self-government.  The  same  appears  from  the 
lines  of  kings  in  Asia  Minor,  Judrea  and  the  remoter  east, 
who  were  allowed  to  continue  at  the  head  of  their  kingdoms 


u,  s.  iii.,  I,  249. 


COMPOSITE  GOVERNMENTS. 


for  years  after  they  submitted  to  the  Roman  power,  ^gypt 
had  a  pecuHar  government  under  the  emperors. 

During  the  repubhc  prjetors  were  sent  out  at  first  to  regu- 
Roman  provincial  ^^te  thc  provinccs.  Aftervvards,  those  who  had 
government.  been  cousuls  or  praetors  were  selected  for  this 
purpose  according  to  rules  of  the  senate,  and  either  were  desig- 
nated to  a  particular  province  or  drew  lots  among  themselves 
to  determine  where  they  should  go.  Under  Augustus,  in  the 
year  727  u.  C,  the  care  of  the  provinces  was  divided  between 
him  and  the  senate.  To  the  latter  belonged  the  very  import- 
ant consular  provinces  of  Asia  and  of  Africa — to  which  con- 
sular men  were  sent — together  with  a  considerable  number  of 
others  which  were  placed  under  men  of  pra;torian  rank. 
Most  of  these  lands  needed  no  military  defence,  and  the  pro- 
vincial rulers  deputed  by  the  senate  now  no  longer  had 
regular  military  power  in  their  hands.  The  emperor's  provin- 
ccs were  in  some  cases  such  as  needed  men  invested  with 
military  power  at  their  head  ;  all  the  governors  of  this  kind 
were  his  agents  and  directly  responsible  to  him.  Their  names 
of  prcescs  (a  comprehensive  term),  of  legate,  of  procurator , 
oS.  prcefect ,  have  been  mentioned  already.  The  time  of  service 
varied  at  different  times.  A  law  of  703  U.  C.,  =  5i  B.  C, 
fixed  the  time  at  one  year;  but  Julius  Caesar  in  708  ex- 
tended it  to  two.  Augustus  returned  to  one,  but  itcratio7i 
was  ndw  permitted  in  the  senatorial  provinccs.  In  the 
others  directly  under  the  emperor  there  was  no  law  save  his 
will. 

Thc  account  already  given  of  thc  cities  that  were  wholly 
or  in  a  degree  free,  will  show  how  much  control  thc  provin- 
cial governors  had  over  the  territories  where  they  were  sent. 
There  were  scattered  abroad  through  thc  Roman  world  ptibli- 
cani,  great  farmers  of  thc  revenues,  or  their  agents,  commer- 
cial men,  travellers,  officials  and  others,  who  were  Roman 
citizens.  Over  these  the  governors  had  jurisdiction  accord- 
ing to  Roman  law,  and  concurrently  with  them,  in  civil  cases, 
it  might  he,  the  officers  of  the  community.  If  the  person 
complained  of  was  a  Roman  senator,  the  governor  could 


158 


POLITICAL  SCIENCE. 


refer  the  case,  without  examining  it,  to  Rome.  In  the  senate's 
provinces  jurisdiction  was  intrusted  to  the  governor's  legates, 
whose  especial  business  this  was  ;  in  those  of  the  emperor, 
if  there  were  no  legates  for  cases  at  law,  who  usually  attended 
on  the  emperor's  legate,  the  latter  with  the  help  of  his  com- 
panions took  this  business  into  his  hands.  The  criminal 
jurisdiction  also  belonged  to  the  provincial  governor,  but  as 
he  could  not  inflict  the  penalty  of  death  on  a  Roman  citizen, 
the  accused  Roman  could  appeal  to  the  people  at  Rome,  or 
under  the  empire  to  the  emperors.  As  for  such  as  were  not 
Romans  it  was  for  the  governor  to  decide  whether  he  would 
remit  the  case  to  the  authorities  at  the  capital  or  not.  And 
in  extraordinary  cases,  when  delay  might  imperil  the  safety  of 
the  state,  he  might  decide  and  inflict  a  capital  sentence  on  a 
Roman,  taking  upon  himself  the  risk.  Furthermore  the  empe- 
ror's legates  who  commanded  armies  in  their  provinces  had  the 
jus  gladii,  at  least  in  reference  to  military  affairs,  over  Ro- 
man citizens.  Such  was  the  state  of  things  under  the  early 
empire.  But  as  citizenship  began  to  be  widely  extended,  it 
was  in  a  manner  necessary  that  the  jurisdiction  of  the  pro- 
vincial governors  should  be  enlarged.  Hence  in  the  third 
century,  the  jurisdiction  in  capital  cases,  which  pertained  in 
theory  to  the  emperor  and  to  the  senate,  was  committed  to 
all  the  governors,  both  of  the  senate's  and  of  the  emperor's 
provinces  ;  but  senators,  members  of  councils  in  free  towns, 
with  centurions  and  higher  officers  of  the  army,  could  still  ap- 
peal to  the  authorities  at  Rome. 

The  Roman  proconsuls  during  the  republic  were  under 
very  little  control,  and  oppressions  of  the  provinces  were  not 
infrequent.  When  accused  at  Rome  by  deputations  from 
the  provinces,  they  were  often  shielded  by  the  judges. 
Under  the  emperors  there  was  more  fear  of  punishment  on 
account  of  oppression  of  the  provincials  ;  thus  the  provinces 
were  more  justly  governed  than  before. 

When  the  right  of  citizenship  was  offered  to  all  the  inhab- 
itants of  the  Roman  world  by  Caracalla,  this  measure  had 
some  effect  in  extending  Roman  law  and  supplanting  local ; 


COMPOSITE  GOVERNMENTS. 


and  Roman  rights  began  to  be  universal,  when  they  began 
to  be  worthless. 

^  204. 

Among  modern  nations,  those  which  have  been  most  com- 
Coionles  especially  oositc  in  their  govcmmcnts  are  Spain  and  Eng- 

Roman,  Spanish  and 

English.  land.    The  former,  before  the  great  war  of 

succession,  was  sovereign  of  Naples,  Sicily,  the  duchy  of 
Milan  and  the  Spanish  Netherlands,  together  with  numerous 
dependencies  in  the  eastern  and  western  parts  of  the  world. 
The  latter,  through  her  colonies,  and  her  conquests  of  the 
colonies  of  others,  became  mistress  of  a  large  part  of  North 
America,  of  Southern  Africa,  of  numerous  islands  in  the 
eastern,  western,  and  southern  seas,  besides  acquiring  by 
degrees  the  supremacy  in  a  large  part  of  India  and  a  decisive 
control  over  Indian  lands  as  yet  independent ;  not  to  speak 
of  adjoining  eastern  territory  which  has  fallen  into  her  hands, 
owing  to  her  predominant  position  in  India.  After  the  trea- 
ties of  Utrecht  and  of  Rastadt-Baden,  the  territories  of  Spain 
in  Europe  outside  of  the  Spanish  peninsula,  passed  from 
under  her  jurisdiction.  As  for  England  under  the  Stuarts, 
there  were  two  nations  united  under  one  king,  with  no  other 
political  union  between  them — England  itself,  including 
Ireland,  and  Scotland.  The  act  of  union,  in  1707,  joined 
England  and  Scotland  together  under  one  sovereign,  and  one 
parliament,  but  left  to  Scotland  its  own  religious  establish- 
ment, laws  and  administration  of  justice.  Ireland  was  fully 
united  with  Great  Britain  in  1 800,  and  thus  the  two  islands 
became  politically  one. 

The  colonies  of  the  two  countries  were  sent  forth  on  a 
greater  scale  than  those  of  any  nation  since  the  days  of  Tyre 
Colonics  of  Pho.-  ancient  Greece.  The  colonies  of  Phcenicia 
were  the  outgrowth  of  the  commercial  spirit,  or 
of  pressure  at  home  owing  to  invasions  of  Assyrian  or 
Babylonian  kings.  The  absence  of  the  political  clement  in 
these  settlements  tended  to  make  them  soon  independent  of 
the  mother-country  ;  but,  as  we  have  seen,  Carthage  absorbed 


i6o 


POLITICAL  SCIENCE. 


again  many  of  them  into  its  system,  always  having  commer- 
cial ends  mainly  in  view.    The  first  Greek  colo- 

Orcece.  ^ 

nies  were  composed  of  fugitives  escaping  from 
the  effects  of  the  Dorian  invasion  of  Peloponnesus  to  the 
land  where  the  lonians  of  the  same  race  were  already  settled. 
Later  colonies  were  caused  by  conquests  on  a  smaller  scale, 
as  the  Messenians  joined  the  people  of  Chalcis  in  their  mi- 
gration to  southern  Italy,  when  the  Spartans  had  conquered 
their  land.  So  also  the  lonians  of  Teos  and  Phocaea  left 
their  homes  on  account  of  the  Persian  invasion,  the  former 
for  Abdera  in  Thrace,  the  latter  for  Massilia  in  Gaul.  Other 
colonies  owed  their  origin  to  internal  dissensions,  or  to  the 
desire  in  oligarchies  of  getting  rid  of  a  poor  class  of  citizens, 
or  to  commercial  causes.*  The  Athenian  clcrticJiice  were 
colonies  sent  to  places  inhabited  by  Greeks  before,  and  often 
to  revolted  places  which  had  been  resubjugated.  They  derived 
their  names  from  the  portions  or  lots  assigned  by  the  Athe- 
nian community  to  citizens  who  wished  to  emigrate.  The 
motives  were  the  security  of  the  reacquired  influence  and 
relief  from  over-population  at  home.  The  Athenian  citizens 
joining  these  colonies  were  not  expected  ever  to  throw  up 
their  connection  with  the  mother-country,  and  remained 
Athenian  citizens.  Most  of  the  colonies  were  planted,  ac- 
cording to  a  remark  of  Niebuhr,  in  places  before  unoccupied, 
unlike  those  which  Rome  sent  forth  ;  and  into  most  of  them 
a  diversity  of  elements  was  received  from  the  first.  This, 
with  the  general  tendency  of  the  Greeks  towards  self-govern- 
ing, independent,  city-communities,  led  to  separations  of  the 
colonics  from  the  mother-countries,  which  had  sent  them  out 
under  religious  auspices,  and  perhaps  with  public  aid. 

The  Roman  colonies,  as  we  have  seen,  were  chiefly  of  a 
political  and  public  nature,  like  advanced  posts 

Spanish  colonics.    ,  .  i  i     t>  •  > 

m  a  territory  not  as  yet  thoroughly  Komamzed. 
But  the  Spanish  colonies,  and,  in  a  degree,  the  English,  had 

*Comi).  Srhoin.  Or.  Altcrth.,  ii.,  8i  onw.,  and  K.  F.  Hermann, 
u.  s.,  i.,  ^5  73,  86,  where  there  is  a  rich  collection  of  particulars.  For 
cleruchi;e  com[).  Boeckh,  Staatsh.,  book  iii.,  §  i8. 


COMPOSITE  GOVERNMENTS. 


i6i 


other  motives  for  their  foundation.  Making  a  distinction  be- 
tween the  motives  of  the  governments  sending  out  the  colo- 
nies and  of  the  colonists  themselves,  we  may  say  that  the 
governments  were  desirous  of  establishing  relations  of  a  com- 
mercial nature  between  the  old  countries  and  the  settlers 
abroad  for  the  benefit  of  the  former.  The  colonists,  on  the 
other  hand,  had  a  diversity  of  motives.  Among  the  Spaniards 
it  was  lust  for  gold  which  chiefly  directed  colonists  to  the 
Spanish  conquests  in  the  new  world.  Of  the  English,  many 
sought  homes  in  the  wilds  to  carry  out  their  religious  convic- 
tions undisturbed.  Others  desired  to  benefit  their  condition 
by  obtaining  lands  at  a  small  price.  A  very  few  convicts 
were  sent  to  the  colonies  by  way  of  penalty.  But  the  rela- 
tions of  the  colonists  to  the  soil  and  the  natives,  together  with 
the  plan  of  government,  are  the  two  important  points  where 
a  mistake  might  be  very  serious,  and  where  very  serious  mis- 
takes were  made.  The  Spanish  colonies  from  a  very  early 
time  were  managed  on  a  somewhat  feudal  plan  of  dividing 
up  the  land  to  settlers  together  with  the  Indians  in  the  way 
of  the  old  feudal  commendation.  169.)  The  ciicomicndas, 
considered  as  grants  from  the  king  of  Spain,  of  soil  and  of  the 
native  inhabitants,  and  called  also  repartimientos  or  reparti- 
tions, were  at  first  instituted  without  law  ;  then  in  1503  the 
laws  of  Spain  made  labor  compulsory  on  the  Indians  and 
their  caciques,  and  yet  regarded  them  as  free  persons.  A 
distinction  may  be  made  between  simple  commendation  and 
the  repartitions,  but  they  came,  as  Mr.  Helps  remarks,  much 
to  the  same  result,  and  the  natives  regarded  the  condition  to 
which  they  were  reduced  as  a  deprivation  of  freedom.  This 
relation  to  the  soil  and  the  natives,  beginning  in  Hispaniola, 
spread  through  the  colonics.  The  natives  perished  under  the 
system  ;  and  its  cruelties,  denounced  by  enlightened  priests 
and  monks,  were  thought  necessary  by  the  colonists.  To 
save  the  remnant  of  the  natives  from  extinction  Africans  were 
imported,  the  beginning  of  the  woes  from  this  source  to  the 
new  continent.  All  the  colonies  of  North  and  South  America, 
without  exception,  we  believe,  received  this  system  oi  cncom- 
VOL.  II.— II 


POLITICAL  SCIENCE. 


iendas.  But  a  number  of  laws  were  made  for  its  mitigation 
or  final  extinction.  In  1542,  a  law,  prepared  by  a  junta  of 
important  men  in  Spain,  and  accepted  by  Charles  V.,  pro- 
vided among  other  things  that  "  after  the  death  of  the  con- 
querors of  the  Indies  the  rcpartimioitos  of  Indians  which  had 
been  given  to  them  in  cncomienda  in  the  name  of  his  majesty, 
should  not  pass  in  succession  to  their  wives  and  children,  but 
should  be  placed  immediately  under  the  king,  the  said  wives 
and  children  receiving  a  certain  portion  of  the  usufruct  for 
their  maintenance."  Further,  the  men  serving  in  a  public 
capacity  who  held  such  properties  should  be  obliged  to  re- 
nounce them.  The  cnconiicndas  were  now  held  in  Peru  for 
the  lives  of  the  original  owner  and  his  son  ;  and  it  would  seem 
that  the  colonists  had  the  impression  that  the  grandson  also 
was  to  be  included.  When  the  new  law  was  proclaimed  it 
created  very  serious  disturbances  in  that  province.  After  the 
extinction  of  the  rebellion  the  president,  De  la  Gasca,  framed 
an  act  of  repartition  of  property,  the  rents  of  which  are 
said  to  have  been  equal  to  the  rental  of  a  large  part  of  Spain. 
All  the  lands  given  out  returned  to  the  crown  after  two 
lives. 

In  Mexico,  Cortez  made  a  provisional  repartition,  which  was 
set  aside  by  that  of  an  audiencia,  and  their  doings  again  were 
rectified  by  another.  The  law  of  succession  (before  1542),  at 
length  provided  for  the  management  of  the  eticomiendas  for 
two  lives  and  on  a  strictly  feudal  plan.  But  the  complaints 
of  the  colonists  against  parting  with  their  properties  led  to  the 
prolongation  by  successive  steps  of  the  tenure  of  these  estates 
to  three  and  five  lives  in  Mexico.  In  Peru  the  tenure  ended 
and  the  properties  reverted  after  the  third  generation.  This 
system  remained  in  force  until  after  the  middle  of  the  eight- 
eenth century. 

The  compulsory  services  of  the  Indians  were  abolished, 
after  great  efforts  in  Spain  to  do  away  with  them,  more  than 
a  hundred  years  after  the  occupation.  The  Indians  employed 
in  the  mines  were  called  Mitayos  ;  these  also  could  not  be 
used  in  the  service  of  individual  colonists  save  for  a  time,  and 


COMPOSITE  GOVERNMENTS.  1 63 

in  limited  numbers.  On  the  whole  the  laws  of  Spain  breathe 
great  humanity  towards  this  part  of  the  population. 

The  Spanish  colonies,  with  great  differences  in  regard  to 
negro  slavery,  and  to  the  treatment  of  the  native  races,  were 
all  governed  by  presidents  receiving  appointment  from  the 
king.  It  does  not  appear  that  the  people  themselves  had  any 
concern  in  their  own  affairs,  unless  in  the  details  of  municipal 
and  village  management.* 

§  205. 

The  English  colonies  first  planted  in  North  America  de- 
Engiish  colonies  pcndcd  for  their  rights  and  privileges  on  royal 
and  dependencies,  charters,  which  were  given  usually  to  companies 
in  Great  Britain.  The  charters,  as  was  natural  in  a  land 
blessed  for  ages  with  municipal  liberty,  gave  self-governing 
powers  to  the  planters  within  the  limits  of  English  law,  yet 
not  to  the  full  extent.  In  most  of  them,  sooner  or  later,  the 
governor  was  appointed  by  the  crown,  and  could  set  aside 
measures  of  the  burgesses  in  the  general  assemblies.  In  one, 
i.  c,  in  the  colony  embracing  Pennsylvania  and  Delaware,  a 
proprietary  governor  was  provided  for — that  is,  one  chosen  by 
the  successors  of  the  original  proprietor  named  in  the  charter. 
In  two  the  qualified  citizens  voted  from  the  first  onward  for  all 
their  magistrates.  In  the  towns  municipal  self-government 
followed  in  substance  the  example  set  in  England.  The  col- 
onies were  all  subject  to  the  laws  of  the  mother  country  in 
regard  to  trade,  and  a  control  was  exercised  by  the  home 
government  over  their  rights  to  engage  in  certain  occupa- 
tions which  would  interfere  with  similar  ones  in  the  mother 
country.  On  the  whole,  however,  nearly  all  the  rights  per- 
tained to  them  which  free  communities  ought  to  desire.  This 
was  their  preparation  for  becoming  a  free,  independent  people. 

The  relation  of  these  F-nglish  colonists  towards  the  natives 
or  Indians  was  somewhat  different  from  that  which  we  have 


*  For  various  partic  ulars  in  wliat  is  saiil  of  the  Spanish  colonics,  I 
am  indebted  to  Mr.  Arthur  Helps,  Span.  Conq.  in  America,  csp.  to 
vol.  iv. 


POLITICAL  SCIENCE. 


found  to  exist  in  the  Spanish  colonies.  To  a  considerable 
extent  they  purchased  their  land  from  the  aborigines,  and  no 
attempts  were  made  to  enslave  them  that  we  are  aware  of. 
These  natives,  being  in  the  condition  of  hunters  of  wild  ani- 
mals, were  scattered  about,  and  for  a  time  mutual  jealousies 
did  not  disturb  their  intercourse  with  the  new  settlers.  When 
they  came  into  conflict  the  English  had  the  general  advantage. 
Slavery  was  introduced  at  an  early  day  into  the  colony  of 
Virginia,  nor  did  any  of  the  colonies  object  to  it  afterwards 
for  a  long  period.  In  the  northern  ones  the  products  capa- 
ble of  cultivation  did  not  call  for  many  slaves.  But  the  demand 
for  slaves  created  by  the  products  of  the  soil  continually  in- 
creased, in  the  southern,  until  a  separation  of  interests  and 
character  arose  between  them  and  their  northern  neighbors. 

The  colonies  in  the  West  Indies,  obtained  to  a  great  extent 
by  conquest,  and  those  in  the  more  northern  parts  of  North 
America,  won  from  the  French,  have  been  brought  into  the 
same  system  which  we  have  spoken  of  above.  Local  gov- 
ernors appointed  by  the  crown,  a  council  and  a  local  legisla- 
ture, are  everywhere  to  be  found.  In  the  colonies  to  the 
north  of  the  United  States  a  successful  attempt  has  been 
made  to  introduce  the  principle  of  confederation  under  the 
supremacy  of  the  British  sovereign  in  council.  In  one  of 
them,  French  law  is  blended  to  some  extent  with  English. 
One  dependency  of  Great  Britain,  or  rather  one  circle  of 
India  as  a  depend-  dependencies  of  vast  extent  and  with  a  vast 
encyof  Gt.  lintain.  population,  has  had  a  most  singular  history,  so 
far  as  its  relations  are  concerned  towards  the  British  empire. 
We  refer  to  the  East  Indian  territory.  A  trading  company, 
with  a  charter  (1600)  from  a  sovereign  distant  by  half  the 
earth's  circuit,  is  forced  by  its  position  into  conflicts  with  native 
princes,  h^orts  in  two  or  three  jjarts  of  India  become  centres 
of  power.  The  French  are  driven  out  of  the  country.  The 
company  not  only  acquires  a  control  over  a  large  part  of 
India,  but  also  can  influence  English  politics.  But,  in  1784, 
by  Mr.  Pitt's  bill,  a  board  of  control,  appointed  by  the  crown, 
was  associated  with  the  directors  of  the  company.    In  1858, 


COMPOSITE  GOVERNMENTS. 


165 


another  bill  relating  to  India  transferred  the  control  of  affairs 
from  the  company  to  the  crown.  It  contemplated  the  appoint- 
ment of  a  secretary  of  state  for  India,  with  a  council  of  fifteen 
assistants  holding  ofificcs  during  good  behavior,  eight  of  them 
nominated  by  the  crown,  and  seven  at  first  by  the  board  of 
directors  and  afterwards  by  the  council  itself.  The  right  of 
free  trade  with  India  was  some  time  before  this  opened  to  all 
English  vessels.  For  a  long  time  there  had  been  three  inde- 
pendent presidencies  in  India.  From  1783,  a  governor-gen- 
eral, who  was  also  governor  of  Bengal,  brought  a  certain  unity 
into  the  administration  of  the  various  parts  where  British  su- 
premacy was  acknowledged.  In  1793,  Lord  Cornwallis  being 
then  governor-general,  a  system  was  permanently  set  on  foot 
in  regard  to  the  tenure  of  land,  the  land-tax,  the  middlemen, 
and  the  tenants.*  as  also  in  regard  to  the  administration  of 
justice  in  that  which  was  British  India  in  the  strict  sense. 
The  relations  of  Great  Britain  to  the  various  states,  as  su- 
preme, as  a  protector,  as  an  ally,  arc  too  complicated  to  be 
described  here. 

The  policy  of  modern  nations  in  regard  to  their  colonies 
has  been  to  use  them  for  the  commercial  benefit  of  the  mother 
country,  and  to  place  them  under  institutions  corresponding 
with  the  political  tendencies  there  prevailing.  The  French 
colonies  all  passed  over  to  the  English.  The  Spanish  sepa- 
rated from  Spain  to  form  free  republics,  with  little  experi- 
ence of  self-government.  The  vast  Portuguese  territory  re- 
mains a  monarchy  with  great  prospects  for  the  future.  Only 
the  English  colonies  have  as  yet  shown  a  vigor  and  life, 
an  intelligence  and  freedom  which  can  compare  with  those 
of  the  Greeks.  This  result  is  due  to  the  political  institutions, 
and  to  the  healthy  tone  of  morals  and  religion  in  England, 
and  promises  to  carry  the  human  race  forward  more  than  any 
other  political  movement  of  modern  times. 

*Coinp.  Mr.  G.  Canipbc-ll,  Tenure  of  land  in  India,  Cobden  club's 
S3'slcnis  of  land  tenure,  149-233  (1870). 


CHAPTER  VIII. 


CONFEDERATIONS. 
§  206. 

Another  form  of  governments  having  a  composite  struc- 
Natiire and  kinds  ^^^^  ^"^^  grcat  importance  can  be  comprised 
of  confederation.  under  the  term  confederations,  or  federal  gov- 
ernments. There  is  a  difficulty  in  drawing  a  line  between 
this  class  of  governments,  and  unions  which  are  less  close 
and  have  little  or  no  central  authority  able  to  control  the 
members.  An  agreement  between  two  neighboring  states — 
we  will  suppose  them  for  the  present  to  be  small  communi- 
ties— may  relate  to  a  particular  action,  as  a  resistance  to  a 
common  neighbor  of  greater  power  than  belongs  to  either  of 
them,  or  to  a  number  of  actions  of  the  same  kind,  such  as 
continued  intercourse,  like  buying  and  selling  in  each  other's 
markets,  and  crossing  each  other's  territories,  which  rest  on 
the  faith  of  treaties.  Agreements  of  the  first  of  these  descrip- 
tions cease  when  the  action  which  they  contemplate  ceases  ; 
those  of  the  other  class  are  made  either  for  a  term  of  years,  or 
have  no  limitation.  Or,  again,  there  may  be  leagues  of  two 
or  more  such  states  for  purposes  of  mutual  defence  intended 
for  all  time,  with  a  specification  of  the  duties  which  are  to  be 
performed  when  the  casus  fccdcris  arises.  This  league  takes 
from  the  freewill  of  each,  in  a  certain  contingency,  the  power 
of  acting  as  it  otherwise  might,  but  the  parties  may  be  in 
other  respects  entirely  separate  from  one  another.  The 
agreement  is  then  of  the  international  sort.  They  may  not 
even  give  and  receive  the  rights  of  commercial  intercourse. 
Here,  then,  as  yet  there  is  no  federal  government,  although 


CONFEDERATIOXS. 


there  may  be  a  perpetual  league  or  alliance.'^  A  federal 
government  implies  much  more.  On  the  one  hand,  says 
Mr.  Freeman,  in  his  still  unfinished  work  on  this  subject  (p. 
3),  "to  form  a  federal  government  each  of  the  members 
must  be  wholly  independent  in  those  matters  which  concern 
each  member  only.  On  the  other  hand,  all  must  be  subject 
to  a  common  power  in  those  matters  which  concern  the  whole 
body  of  men  less  collectively."  Thus,  the  two  poles  of  a  fed- 
eral government  are  independent  action  of  the  members  in 
certain  things,  and  a  central  power  or  government  which,  in 
certain  things,  is  equally  independent.  This  central  power 
or  government  of  the  federal  union  must,  in  the  nature  of  the 
case,  be  the  result  of  an  agreement  of  the  parts  with  one  an- 
other ;  but,  when  founded,  it  no  longer  depends  on  the  desire 
of  any  one  member  to  continue  in  the  union.  From  the 
nature  of  the  case  the  central  government  is  not  created  for 
a  particular  emergency,  but  for  the  attainment  of  perpetual 
ends.  It  might,  indeed,  be  conceivable  that  such  a  govern- 
ment, or  indeed  any  other,  should  expire  by  its  own  limita- 
tion after  the  lapse  of  a  half-century,  just  as  there  have  been 
terminable  treaties  of  peace  ;  but  the  central  government  has 
the  same  reasons  for  enduring  which  two  countries  like  Eng- 
land and  Scotland  had  in  forming  a  union.  From  its  forma- 
tion, if  it  be  a  real  government,  that  is,  if  it  have  a  sphere  of 
its  own  to  act  in  like  other  states,  and  a  power  of  its  own  like 
other  states,  it  is  an  independent  political  entity. 

How  does  the  relation  of  such  a  federal  government 
towards  the  states  which  are  its  members  differ  from  the  re- 
lations between  a  state  and  a  municipality  ?  The  answer 
must  be  that  in  no  sense  is  a  self-governing  municipality 
independent.  Its  charter,  if  it  have  any,  or  its  duties  and 
rights,  as  defined  by  a  general  law,  proceed  from  state  power, 
and  may  be  modified  for  failure  to  fulfil  its  duties,  or  for  great 
state  purposes.     It  is  simply  within  the  competence  of  the 

*  Tlicsc  words,  it  may  be  remarked,  arc  from  llic  same  root,  li}^o, 
to  bind  ;  alliance  from  a(lli,i;o,  throiigli  tlic  French  allier,  and  Icai^tie 
from  ligo,  throiigli  Fr.  ligue. 


POLITICAL  SCIENCE. 


state,  through  its  judges,  or  it  may  be  through  its  legislature, 
to  decide  whether  the  town  shall  longer  enjoy  its  franchises 
which  it  has  forfeited,  or  of  which  public  necessity  required 
the  modification.  But  the  states  in  a  confederacy  cannot  con- 
trol the  central  power,  or  put  an  end  to  it,  except  by  unani- 
mous agreement,  or  in  accordance  with  the  provisions  of  the 
compact  ;  nor  can  the  federal  union  affect  the  status  or 
existence  of  one  of  its  members,  unless  the  member  is  en- 
deavoring to  overthrow  the  power  of  the  union,  in  which 
case,  by  the  courts  or  by  force,  the  union  can  defend  itself 
and  the  members  who  remain  faithful. 

A  confederation,  then,  is  one  and  many.  It  is  on^,  in  that 
the  law  and  power  of  the  union  is  supreme  so  far  as  all  or 
certain  external  affairs  are  concerned,  and  so  far  as  certain 
intercourse  between  the  parties  is  concerned.  The  control 
in  certain  things,  of  which  international  law  takes  notice,  and 
in  certain  things  pertaining  to  the  relations  of  the  states  to 
one  another,  belongs  to  the  central  government.  Nearly  all 
the  relations  of  private  individuals  within  a  state,  to  the  state 
or  to  each  other,  are  within  the  jurisdiction  of  the  state  itself. 

It  must  be  confessed,  however,  that  this  description  would 
cut  off  the  right  of  some  governments  generally  called 
federal  to  being  considered  as  such,  and  would  necessitate 
the  use  of  new  divisions  and  terms  which  would  not  be  likely 
to  be  of  much  use  in  theory  or  in  practice.  For  instance,  it 
will  be  admitted  probably  by  all,  that  the  right  of  waging 
war  with  foreign  nations  must  belong,  if  any  right  can  ex- 
clusively belong,  to  a  federal  government.  But  suppose  that 
no  war  could  be  declared  or  carried  on  without  the  consent 
of  all  the  states  or  members  of  the  union,  or  that  they  are  by 
its  constitution  required  to  furnish  each  its  fair  contingent, 
while  the  union  has  no  army  of  its  own  ;  would  this  be  an 
imperfect  tmion  or  no  federal  government  at  all  ?  If  we  say 
that  it  would  be  no  proper  federal  government,  wc  should 
have  to  arrange  the  seven  united  provinces  of  the  Nctlier- 
lands  under  another  rubric.  If  each  were  required  to  furnish 
its  own  contingent,  while  no  power  was  lodged  with  the  cen- 


CONFEDERATIONS. 


tral  government  to  compel  their  fulfilment  of  their  duties, 
we  should  have  an  imperfect  confederation,  like  one  of  the 
forms  of  the  Germanic  body. 

We  shall  not  then  attempt  to  draw  very  rigid  lines  nor  to 
make  nice  definitions.    The  distinction,  however,  which  the 
German  writers  have  introduced  into  political  science  between 
a  staatciibuiid  and  a  buiidcsstaat  is  a  very  valuable  one,  the 
former  word  denoting  a  league  or  confederation  of  states, 
the  latter  a  state  formed  by  means  of  a  league  or  confedera- 
tion.   In  order  to  know  to  which  of  the  two  classes  a  given 
state  belongs,  we  need  to  inquire  only  whether  the  political 
body  in  question  has  the  essential  qualities  of  a  state  or  not. 
If  it  has  the  right  to  make  war  and  peace,  to  send  and  re- 
ceive ambassadors,  to  levy  taxes,  to  hold  courts,  to  protect 
and  restrain  its  members  so  as  to  keep  them  within  the  funda- 
mental law  of  the  union,  to  interpret  that  law  in  the  last  re- 
sort, to  have  a  legislature  and  an  executive  of  its  own,  with 
powers  answering  to  such  a  constitution,  it  is  a  state  formed 
by  the  union  of  pohtical  bodies  which  were  either  states,  or 
dependencies  of  another  state  or  of  other  states.    In  the 
latter  case  the  union  was  the  result  of  a  revolutionary  meas- 
ure, and  state  existence  had  not  begun  until  the  revolution 
had  finished  its  course  by  the  acknowledgment  of  the  union. 
In  the  former  case  the  states  renounced  their  independent 
existence  as  truly  as  two  states  would  renounce  theirs  when 
they  united  permanently  together  under  one  sovereign  and 
one  law.    As,  however,  the  rights  belonging  to  the  buiidcs- 
staat, or  state  resulting  from  a  confederation,  may  greatly  vary 
between  the  extreme  where  the  parts  seem  to  be  consolidated 
together,  to  the  complete  or  almost  complete  destruction 
of  the  original  parts,  and  the  opposite  extreme  wiiere  tiic 
government  of  the  union  is  in  its  power  and  infiuence  exceed- 
ingly weak,  it  may  evidently  be  difficult  to  dccitle  whether 
a  particular  confederation  belongs  to  tliis  form  or  not.  On 
the  other  hand,  the  staatcubnnd  or  league  of  states  may  ap- 
proach very  nearly  to  the  state  constructed  by  confederation, 
or  may  approach  the  loose  condition  of  a  mere  alliance  for 


170 


POLITICAL  SCIENCE. 


several  purposes.  This  difficulty,  however,  resembles  those 
which  we  meet  in  regard  to  many  other  constitutions  of 
states.  From  one  point  of  view  they  seem  to  belong  to  one 
form,  from  another  to  another.  Especially  do  mixed  govern- 
ments call  up  such  questions. 

Both  these  forms  have  figured  in  history,  and  will  need  to 
be  looked  at  in  their  workings  in  particular  cases,  if  we  would 
discover  their  tendencies,  advantages,  and  defects.  It  is  the 
second  form,  however,  on  which  we  shall  bestow  most  atten- 
tion, partly  because  it  is  the  form  of  government  in  the  Uni- 
ted States,  and  partly  because  it  is  something  of  a  novelty 
in  the  world,  and  has  been  supposed  to  meet  satisfactorily 
the  wants  of  several  modern  political  societies  which  are 
composite  in  their  structure. 

With  regard  to  federal  governments,  and  especially  to  those 
which  constitute  a  state  over  states,  we  observe  first  that  they 
are  essentially  more  complicated  then  any  other  kind  of  gov- 
ernment, and  have  peculiar  difficulties  of  their  own  from  the 
co-e.xistence  of  states  with  a  paramount  state.  Being  an  arti- 
ficial construction  formed-  by  human  thought  to  meet  certain 
difficulties,  they  generally  have  not  the  benefits  of  experience 
that  those  states  have  which  have  grown  up  by  successive 
steps,  which  have  set  up  new  institutions  to  meet  new  wants 
of  society,  and  which  are  the  results  of  long  and  often  un- 
fortunate trials.  It  is  certain,  for  instance,  that  if  the  framers 
of  the  American  constitution  could  have  foreseen  the  im- 
mense patronage  of  the  president,  with  all  the  subserviency 
and  selfishness  of  parties  which  this  power  eiiher  creates  or 
strengthens,  they  would  have  anxiously  inquired  how  these 
great  evils  could  be  prevented,  which  now  it  is  so  difficult  to 
cure  because  every  party  wants  the  same  means  of  promoting 
its  ends  which  others  have  had  before  it. 

Again,  the  complication  involves  frequent  mistakes,  and  is 
hard  to  be  seen  through.  How  much  power  has  been  given 
up  and  how  much  taken  ?  What  is  the  meaning  of  the  fed- 
eral instrument  of  government  when  it  limits  the  state  power  ? 
Is  it  to  be  loosely  or  strictly  interpreted  ?    Such  questions 


CONFEDERATIONS. 


171 


must  give  rise  to  a  multitude  of  heart-burnings  in  particular 
cases,  where  a  state  legislates  on  matters  in  which  other  states 
of  the  confederacy  have  a  concern,  or  in  which  the  rights  of 
individuals  may  be  invaded.  As  an  instance  of  this  possibil- 
ity of  conflict,  and  of  the  wide-sweeping  range  of  a  few  words 
in  our  federal  constitution,  I  may  refer  to  the  provision  in  Arti- 
cle I,  §  10,  that  no  state  shall  pass  any  law  impairing  the  ob- 
ligation of  contracts.'^  Let  any  one  examine  the  history  of 
decisions  in  cases  of  appeal,  where  this  little  clause  was  brought 
in  question;  whether  it  affects  state  laws  relating  to  executory 
contracts,  express  or  implied,  or  to  executed  contracts,  to 
officers,  to  licenses,  to  private  and  public  corporations  ;  or  ask 
what  is  the  obligation  of  a  contract  which  may  not  be  im- 
paired, and  what  state  laws  impair  it ;  and  he  will  find  a  con- 
trol most  salutary,  but  sometimes  most  irritating  in  the  series 
of  cases  where  state  law  and  the  judgment  of  the  supreme 
court  of  the  union  come  into  conflict.  A  state  is  liable  con- 
tinually to  overstep  its  just  power  and  to  encroach  on  the 
power  and  rightful  auth(M-ity  of  the  general  government,  and 
it  may  happen  that  the  union  itself  by  its  law  and  the  decisions 
of  its  judges  may  overstep  the  limits  drawn  by  the  constitu- 
tion. In  this  case  there  is  no  remedy  within  the  constitution, 
no  remedy  but  dissolution.  A  dissolution  again  is  more  easy 
and  natural  in  a  confederation  than  in  other  political  organi- 
zations, because  a  large  part  of  the  purposes  of  government 
are  subserved  by  the  particular  states  or  members  of  the  fed- 
eral union,  and  the  inhabitants  seldom  feel  in  their  private 
affairs  the  power  of  the  general  constitution.  Its  necessity 
is  not  felt,  because  the  advantages  from  it,  such  as  the  man- 
agement of  intercourse  with  foreign  parts  and  between  the 
states,  when  once  it  is  established,  seem  things  of  course.  To 
estimate  them  properly  one  ought  to  live  where  a  multitude 
of  little  sovereignties  have  their  own  diplomatic  relations, 
their  barrier  tariffs,  their  constant  difficulties  along  the  bor- 
ders, or  from  complaints  of  internal  injustice.  Allegiance, 


*Conii).  Porneroy's  Const,  law,  348-413, 


172 


POLITICAL  SCIENCE. 


again,  is  divided  between  the  particular  state  and  the  country 
or  union,  so  that  it  ought  to  be  strong  in  order  to  bear  the 
strain  of  two  cords  pulUng,  it  may  be,  in  different  directions. 

Further,  there  will  be  parties  created  by  a  federal  union 
itself,  considered  as  a  constitution,  as  well  as  by  differences  of 
interests  in  different  parts  of  it,  if  it  be  a  large  country.  The 
formation  of  the  union  may  have  grown  out  of  needs  which 
were  different  in  different  parts,  so  that  all  will  not  find  that 
it  affords  them  equal  or  similar  protection.  There  must  also 
be  interests  of  production,  dependent  on  soil  and  climate, 
which  will  not  be  reconciled  or  equally  aided  by  legislation. 
One  part  of  a  country  wants  a  tariff,  another  wants  to  be  with- 
out a  tariff.  But  a  majority  must  govern.  Hence,  the  minor- 
ity, which  may  well  be  predominant  in  one  quarter,  may 
complain  of  the  tyranny  of  another  quarter  of  a  common 
country. 

It  will  not  seem  strange,  then,  that  some  writers  should 
consider  a  federal  government,  owing  to  its  nice  balances  in 
regard  to  division  of  power  between  the  union  and  the  mem- 
bers, and  in  regard  to  the  conflicting  interests  of  the  parts, 
as  a  peculiarly  delicate  and  almost  unadjustable  framework. 
"The  federative  system,"  says  Mr.  Guizot  (Hist,  of  Civ., 
Lect.  iv.),  "  is  one  which  evidently  requires  the  greatest  ma- 
turity of  reason,  of  morality,  of  civilization  in  the  society  to 
which  it  is  applied.  Yet  we  find  that  this  was  the  kind  of 
government  which  the  feudal  system  attempted  to  establish  ; 
for  feudalism,  as  a  whole,  was  truly  a  confederation."  With- 
out stopping  to  insist  on  the  differences  in  these  forms  of  pol- 
ity, the  resemblances  of  which  Mr.  Guizot  does  not  point  out, 
although  well  aware  of  them,  we  find  his  judgment  to  be  most 
true  in  respect  to  the  difificulty  of  establishing  a  federal  sys- 
tem in  a  world  of  ignorance  and  brute  passions.  It  is  certain 
that  when  a  half-barbarous  independence  prevails  and  the 
sense  of  order  runs  low,  where  men  fight  their  own  private 
battles  and  are  a  law  to  themselves,  the  states  which  they 
inhabit  are  equally  independent  and  cannot  submit  to  the  re- 
straining power  of  a  central  government. 


CONFEDERATIONS. 


Yet  in  such  a  union,  in  a  biuidcsstaat — that  is,  a  state  formed 
out  of  states,  there  is  not  one  sovereignty  more,  but  there  are 
many  sovereignties  less,  and  the  supremacy  is  lodged  in  the 
federal  union.  This  is  what  the  instrument  of  our  union  means 
when  it  declares  that  "  this  constitution  and  the  laws  of  the 
United  States  which  shall  be  made  in  pursuance  thereof,  and 
all  treaties  made  or  which  shall  be  made  under  the  authority 
of  the  United  States,  shall  be  the  supreme  law  of  the  land, 
and  the  judges  in  every  state  shall  be  bound  thereby  ;  any- 
thing in  the  constitution  or  laws  of  any  state  to  the  contrary 
notwithstanding."  If  a  law  is  thought  to  be  against  the  con- 
stitution, it  can  be  brought  before  the  supreme  federal  judges 
and  examined  in  that  respect.  If  found  by  them  to  have 
justly  emanated  from  the  federal  legislature,  no  state  or  state 
law  or  state  power  can  afifect  its  validity  ;  and  resistance  to  its 
taking  effect  within  a  state  would  call  for  armed  force  in  the 
last  extremity,  and  subject  parties  in  armed  resistance  to  the 
penalties  of  treason. 

The  question  is  a  fit  one  to  be  ashed  :  What  are  the  condi' 
tions  under  which  states  forming  federal  unions  can  expect  to 
be  not  unsuccessful  ?  It  may  be  answered  in  general  that  they 
must  have  those  qualities  or  be  in  those  circumstances  where 
they  can  have  a  common  feeling.  First,  then,  a  common 
language  seems  necessary.  Countries  united  under  one  sover- 
eign, with  no  separate  state  organization,  can  hardly  be  made 
one  so  long  as  they  have  dialects  quite  diverse.  It  was  a 
serious  obstacle  in  the  way  of  union,  when  the  legislature  of 
the  kingdom  of  the  Netherlands,  founded  in  1 8 14,  had  three 
different  languages  spoken  in  its  halls — Dutch,  Flemish,  and 
.  French.  This  foreshadowed  the  disruption  in  1 830,  as  it  in- 
tensified every  prejudice  and  difficulty.  A  coiinnon  /aiu  is  also 
essential  for  a  complete  union — that  is,  a  law  so  far  common  that 
all  the  principles  of  justice  arc  e(|ual!y  recognized  by  all,  and 
tiiat  all  the  inhabitants  may  feel  tiiat  they  can  never  go  w  here 
what  they  regard  their  liberties  may  be  likely  to  be  invadrd. 
A  common  rcH<:^ion  is  not  so  essential,  and  yet  if  the  sections 
of  the  country  differ  in  this  respect  so  far  that  a  fiith  pre- 


174  POLITICAL  SCIENCE. 

dominant  in  one  in  another  has  hardly  any  votaries,  this  is 
one  separating  cause,  which  added  to  others  may  break  up 
the  union.  On  the  other  hand,  if  the  same  Christian  de- 
nominations are  spread  everywhere,  this  will  be  a  potent 
cause  for  continuing  the  union,  for  the  intercourse  of  sects 
is  a  closer  bond  in  a  country  than  is  generally  imagined. 
Again,  the  same  general  conception  of  liberty  and  the  same 
institutions  have  a  great  binding  force.  For  us  to  live  under 
English  institutions,  to  have  the  municipal  and  special  forms 
of  rights  that  our  ancestors  had,  facilitated  our  coming  to- 
gether very  greatly.  There  was  one  institution,  slavery, 
that  divided  us — not  indeed  at  first  so  much  as  afterwards, 
when  it  was  seen  to  be  in  violent  opposition  to  our  principles 
of  liberty ;  and  this  wedge  was  strong  enough  to  divide  the 
republic. 

How  far  small  monarchies,  or  governments  of  various 
kinds  near  one  another,  speaking  the  same  language,  and 
ha\'ing  nearly  the  same  laws,  can  be  united  in  a  permanent 
union  of  the  more  compact  sort,  may  be  made  a  question. 
We  shall  consider  it  when  we  come  to  the  forms  of  the  Ger- 
manic body.  We  only  remark  here  that  monarchies,  espe- 
cially if  not  of  the  more  limited  sort,  will  naturally  dread 
parting  with  political  power  ;  they  will  prefer  a  league  of 
states  to  a  state  formed  out  of  a  league,  and  under  such  a 
constitution  will  not  readily  consent  to  any  great  supervision 
being  exercised  over  them,  nor  to  the  strict  control  of  supreme 
courts  set  up  by  a  league. 

The  earliest  attempts  to  create  some  sort  oi  federal  union 
would  naturally  stop  at  giving  to  a  central  government  or  ad- 
ministration the  least  power  consistent  with  the  purposes  for 
which  the  union  was  formed.  For  no  existing  state  likes  to 
part  with  power  ;  and  the  city  governments,  accustomed  to 
do  all  political  acts  by  the  immediate  action  of  the  citizens 
and  through  agents  of  their  own,  would  be  slow  to  trust 
other  states — even  states  closely  allied  to  them  in  language 
and  in'^titutions — with  a  check  on  their  power,  unless  it  were 
terminable  at  will. 


CONFEDERATIONS. 


§  207. 

The  history  of  unions  begins  with  a  more  remote  connec- 
Riseofconfedera-  tion  or  an  alUance  between  neighbors  of  the 
Hons  in  Greece.  same  racc  j  and  among  such  states  there  could 
hardly  fail  to  spring  up  some  understanding  how  their  in- 
habitants were  to  be  treated  in  each  other's  markets,  what 
should  be  done  with  offenders  escaping  into  the  other  terri- 
tory, what  reparation  should  be  due  for  crimes  committed  by 
the  people  of  each  within  the  territory  of  the  other.  Man 
could  not  be  true  to  his  nature  without  some  imperfect  law 
of  nations  even  in  very  early  society.  The  fear  of  external 
foes  would  create  more  permanent  and  more  express  under- 
standings. If  the  need  of  mutual  defence  were  more  than  a 
mere  passing  one,  this  would  help  on  the  feeble  beginnings 
of  union.  Religious  festivals,  the  gathering  of  all  the  com- 
munities around  a  common  shrine  would  cement  the  union, 
either  because  common  religious  rites  formed  a  common 
bond  to  strengthen  a  political  association  formed  afterwards, 
or  because  the  political  bond  took  hold  of  the  religious  nature 
and  instituted  new  religious  ties.  All  the  ancient  gatherings 
of  tribes  or  states  were  cemented  by  the  festivals  of  religion  ; 
and  on  the  occasions  when  the  people  met  together,  other 
usages  might  arise— fairs,  musical  and  gymnastic  contests, 
everything  by  which  man  expresses  the  joy  of  his  nature 
when  he  meets  with  his  fellows. 

There  were  many  such  gatherings  in  Greece,  of  which  we 
know  a  little  and  but  little.  Leaving  most  of  them  to  the 
antiquarian  and  the  scholar,  we  shall  say  a  word  or  two  about 
the  most  important.  Several  of  them  are  called  by  the  name 
o{  atnphictyoni(£,  or  meeting  of  those  who  lived  in  the  neigh- 
borhood, answering  in  derivation  very  nearly  to  our  Anglo- 
Sa.xon  neighbor,  i.  c,  a  cultivator  in  the  vicinity.*    All  such 

*  From  jica/i,  near,  and  (^ahiir,  cultivator,  from  i'lian  to  till,  to  in- 
habit. TTf^tKTi'oi'ts,  used  by  Ilomcr  and  only  in  tlic  plural.  siLjuil'ics 
simi)ly  tlic  ncigiibors.  d/n</>tKT('o)i/  and  not — vmv,  was  prohaMy  the 
origmal  form,  still  occurring  from  kti-  (kti'^uj),  to  found,  settle,  build. 


176 


POLITICAL  SCIENCE. 


gatherings  in  Greece  that  are  known,  met  at  a  common  tem- 
ple. In  some  of  them  we  can  trace  no  political  object,  in 
others  such  an  object  is  apparent.  In  one  or  more  we  have 
a  tradition  that  a  strife  between  two  states  was  put  for  arbi- 
tration into  the  hands  of  the  states  there  gathered.  Some 
were  composed  of  a  part  of  one  branch  of  the  Hellenic  race  ; 
while  others  belonged  to  several  or  to  a  large  number  of  the 
members  of  the  Hellenic  body. 

The  Amphictyonic  council  so  called  by  way  of  eminence. 
The  Amphictyon-  consistcd  of  a  number  of  small  tribes  which 
ic  council.  surrounded  the  temple  of  Dc7neiC7'  neViT  Pylae  or 

Thermopylae,  in  the  district  belonging  to  the  Malian^.  In 
process  of  time  this  gathering  was  shared  in  by  twelve  tribes 
or  peoples,  all  of  whom  can  be  traced  to  the  neighborhood, 
with  one  or  two  exceptions.  The  Dorians  must  have  been 
members  of  it  before  they  invaded  the  Peloponnesus.  The 
Thessalians,  whom  tradition  speaks  of  as  having  come  after 
the  Trojan  war,  from  the  west,  into  the  country  called  by  their 
name,  may  have  been  later  members  of  the  union  ;  but  when 
the  great  Ionian  race  became  members,  it  docs  not  appear. 
On  the  other  hand,  not  all  the  Greek  races  took  part  in  the 
meeting  or  council  ;  thus  the  Acha;ans  of  Peloponnesus,  the 
JEtoWs-ns,  Acarnanians,  Dryopes,  Eleians,  had  no  member- 
ship, and  during  the  period  of  history  several  of  the  members 
were  dependants  of  the  leading  race  in  Thessaly.  It  was 
thus  in  no  sense  a  panhcllenic  confederacy  at  any  time  of  its 
continuance.  Its  origin  must  have  been  very  remote,  as  is 
shown  by  the  fact  that  its  meetings  were  calLd  Py/cece,  and 
the  orators  sent  to  it  as  deputies,  Pylagorae  (from  Pylai  or 
Thermopyla;\  whereas  its  main  relations,  in  historical  times, 
were  with  the  temple  of  Apollo  at  Delphi.  This  seems  to 
show  that  before  that  temple  rose  into  its  importance  as  the 
most  sacred  place  in  Greece,  as  the  very  centre  of  the  Hel- 
lenic religion,  the  Amphictyonic  meetings  had  existed.  Its 
connection  with  Delphi  was  doubtless  the  main  cause  of  its 
importance. 

There  were  two  gatherings  of  this  body  or  of  its  represent- 


CONFEDERATIONS. 


atives  from  the  states  that  were  members  ;  one  in  the  spring 
and  one  in  the  autumn.  At  both  times,  however,  the  meet- 
ing took  place  first  at  Pylae,  and  in  the  spring  meeting  was 
adjourned  regularly  to  Delphi.  It  consisted  of  a  /SouX^  or 
council,  and  of  an  assembly  of  the  people  from  the  several  con- 
stituent races  who  happened  to  be  present.  The  council  was 
composed  of  two  members  from  the  several  races  or  nations, 
or  twenty-four  in  all.  Thus,  at  one  time,  Athens  and  one  of 
the  smaller  city  communities,  belonging  to  the  lonians,  sent 
deputies  together,  according  to  a  rule  of  rotation  which  is  not 
on  record,  although  it  is  probable  that  the  turn  of  Athens 
came  oftcner  than  that  of  its  smaller  sisters.  The  members 
of  the  council  were  called  hieromnemoncs,  or  officers  to  take 
care  of  sacred  affairs,  a  word  of  very  early  origin,  perhaps 
referring  to  the  guardianship  over  the  temple  and  oracle  at 
Delphi.  With  these  officers,  who  seem  alone  to  have  had  a 
vote,  were  associated  the  pylagorce  or  orators,  sent  by  the 
states  to  give  advice  and  speak  on  the  affairs  of  the  council, 
and  who  were  indefinite  and  variable  in  number.  These 
were  chosen  at  Athens  by  lifting  the  hand,  and  were  (at  one 
time,  at  least)  three.  The  hicromnemones  were  appointed  by 
lot  either  for  a  year  or  for  a  Delphic  period.  The  nations  in 
the  council  were  thus  equal  in  their  vote,  each  sending  two, 
"so  that  the  hieromnemon  from  Dorium  or  from  Cytinium 
had  as  much  power  as  the  one  from  Lacedaemon,  and  he 
who  came  from  the  Ionian  state  of  Erythrae  or  Priene  as 
much  as  the  Athenian  delegate."  (yEsch.  de  fals.  leg.,  p. 
280,  §  36.) 

./Eschines  the  orator,  to  whom  we  are  indebted  for  nearly 
all  we  know  of  the  constitution  or  the  Amphictyonic  gather- 
ing and  council  (de  fals.  leg.  u.  s.,  and  in  Ctes.,  p.  405,  onw.), 
says  that  an  oath  was  taken  by  the  confederate  states  in  the 
old  times  that  they  would  destroy  none  of  the  cities  that  had 
part  in  the  council,  nor  shut  them  out  from  the  use  of  their 
running  waters  either  in  war  or  in  peace  ;  and  that,  if  any 
member  transgressed  in  this  respect,  they  would  make  an  ex- 
pedition against  it  and  destroy  its  cities.  An  additional  oath 
VOL.  ir.  — 12 


178 


POLITICAL  SCIENCE. 


secured  the  inviolability  of  the  sacred  property  at  Delphi 
against  attempts  to  plunder  it. 

All  the  agency  of  the  council  that  appears  in  history  is  con- 
nected with  the  protection  or  the  defence  of  the  temple  or  of 
the  consecrated  ground.  In  the  time  of  Solon  and  Clisthenes 
a  sacred'war  broke  out  against  the  inhabitants  of  the  plain 
below  Delphi,  for  their  crimes  committed  against  the  temple 
and  the  persons  of  some  delegates  to  the  council,  which 
ended  in  the  destruction  of  their  towns  and  harbors,  their  own 
enslavement,  and  the  setting  apart  of  their  territory  as  sacred 
soil,  under  a  solemn  curse  if  it  were  otherwise  used.  The 
other  instances  in  which  the  council  was  concerned  in  meas- 
ures of  importance  occurs  at  the  beginning  of  Grecian  decline  ; 
and  the  council  now  became  a  catspaw,  used  especially  by  the 
advocates  of  the  Macedonian  policy  in  furthering  the  ends  of 
Philip  and  stirring  up  strife  between  the  states.  About  356 
B.C.,  at  the  instigation  of  Thebes,  Phocian  landowners  were 
put  under  a  curse  and  heavily  fined  on  charge  of  encroaching 
upon  the  domains  of  the  god.  This  led  to  the  sacred  war,  in 
the  course  of  which  the  Phocian  generals  took  large  sums 
from  the  rich  Delphic  treasury  to  pay  their  mercenaries.  This 
long  war  led  finally  to  the  invasion  and  overthrow  of  Pho- 
cis  by  king  Philip,  and  to  his  getting  a  foothold  in  southern 
Greece.  (346  B.C.)  Again  we  find  a  movement,  in  which 
the  orator  .^Eschines  bore  a  part,  for  action  of  the  Amphic- 
tyonic  council  against  Thebes,  one  of  the  Bccotian  Amphic- 
tyonic  states,  in  order  to  visit  on  Thebes  the  subversion  of 
Boeotian  cities,  which  were  protected  by  the  oaths  mentioned 
already,  (de  fals.  leg.,  p.  280.)  Lastly,  the  same  orator  in- 
forms us  how  he  inveighed  against  the  Locrians  of  Amphissa, 
who,  in  spite  of  the  action  of  the  council  in  the  time  of  Solon, 
had  rebuilt  the  harbor,  and  were  collecting  customs  and  culti- 
vating the  soil  of  the  plain.  The  Locrian  delegates  to  the  coun^ 
cil  were  in  the  act  of  proposing  a  decree  to  the  council  to  fine 
Athens  for  setting  up  votive  shields  without  the  proper  for- 
malities, when  yEschines  roused  the  council  and  the  people 
of  Delphi  against  them,  and  a  movement  was  made  for  driv- 


CONFEDERATIONS. 


179 


ing  them  out  of  the  sacred  territory.  These  manceuvres  led 
finally  to  the  appointment  of  Philip  of  Macedon  as  general 
of  the  council,  and  the  Athenians,  in  self-defence,  making  an 
alliance  with  Thebes,  fought  the  battle  of  Chaeronea  the  same 
year. 

In  the  course  of  his  narrative  .^schines  mentions  an  assem- 
bly convoked  by  the  president  of  the  council,  "  for  that  was 
called  an  assembly  where  not  only  the  deputies,  but  those 
who  sacrificed  with  them  and  consulted  the  oracle,  took  part." 
We  may  from  this  hint  conceive  of  the  council  as  originally 
consisting  of  a  senate  and  a  people. 

The  council  thus  did  very  little  in  the  way  of  uniting 
Greece  ;  it  became  a  mere  tool  of  an  unscrupulous  party 
in  the  last  days  of  Grecian  liberty,  and  it  was  very  inefficient 
in  any  way  except  on  one  or  two  occasions.  And  this  ineffi- 
ciency was  owing  mainly  to  the  fact  that  the  peoples  repre- 
sented there  were  most  of  them  of  little  account,  and  the 
regular  business  of  the  council  almost  exclusively  religious. 
Nor  do  the  Athenians  seem  to  have  known  much  about  it, 
since  ./Eschines  has  to  tell  them  the  nature  of  its  constitution, 
as  if  he  were  speaking  of  some  foreign  kingdom. 

In  the  later  confederations  which  sprang  up  after  the  divi- 
sion of  Alexander's  conquests,  and  in  the  downfall  of  Greece, 
the  political  element  was  predominant  ;  the  religious  became 
of  no  importance.  These  leagues  were  not  originally  meant 
to  be  panhcllcnic  leagues,  nor  was  there  then  a  revival  of 
nationality.  They  are  in  their  plan  and  their  partial  success 
among  the  most  interesting  studies  of  ancient  political  his- 
tory ;  and  what  is  remarkable,  their  origin  and  centre  are 
found  in  states  which,  while  Sparta  and  Athens  flourished, 
were  feeble  cities  of  minor  races — in  fact,  partly  out  of  the 
Greek  pale.  Tliis  probably  is  one  reason  why  they  felt  free 
to  act.  In  earlier  times  it  fell  to  Athens,  or  Lacedajmon,  or 
Thebes,  to  initiate  a  policy.  Now  the  leaders  were  taken 
away,  and  they  were  obliged  to  act  for  themselves. 


i8o 


POLITICAL  SCIENCE. 


208. 

The  principal  confederations  of  this  period  were  the  Achae- 
an and  the  yEtolian  leagues.    I  shall  give  the 

The  later  leagues.  , 

particulars  only  of  the  former.''*  This  was  not 
the  first  of  the  later  Greek  confederations.  In  B.  C.  371 
Megalopolis  was  founded  in  order  to  unite  Arcadia,  and  this 
measure  did  serious  detriment  to  Lacedaemon.  About  the 
same  time,  Jason  of  Pherae  united  all  Thessaly  for  a  time,  but 
as  a  tyrant,  not  as  the  head  of  a  political  union.  The  Boeo- 
tian league,  consisting  at  one  time  of  fourteen  cities,  was 
quite  ancient.  But  Thebes,  which,  as  early  as  B.  C.  424,  had 
two  votes  in  this  body,  and  in  378,  three,  asoired  to  the  su- 
premacy. The  constitution  of  the  league  seems  to  have 
been  this  :  twelve  presidents  chosen  annually,  representing 
the  twelve  cities  of  a  certain  period  (afterwards  reduced  to 
eleven),  seem  to  have  had  equal  authority,  and  four  senates 
(Thucyd.,  v.,  38)  which  had  tht  entire  power  in  the  last  resort, 
were  the  consulting  boards.  The  league  was  dissolved  in  the 
Persian  war,  and  restored  by  Sparta  in  457  B.  C,  in  order  to 
raise  up  a  centre  of  power  against  Thebes.  The  place  of 
gathering  was  probably  the  temple  of  Athene  Itonia  near 
Coronaea.  and  there  the  Pambceotian  festival  was  celebrated. 
The  strife  of  oligarchy  and  democracy,  the  ascendency  of 
Thebes,  the  interference  of  Sparta,  disturbed  this  league  and 
made  it  of  little  importance  in  the  later  times  of  the  Greek 
nation,  t 

The  ^tolians,  an  insignificant  people  when  Greece  was 
in  its  glory,  half  Greek  in  their  language  and  habits,  with  a 
country  divided  into  cantons  or  districts,  may  have  had  a 
union  of  its  tribes  and  cantons  from  quite  early  times  ;  and 

*  For  Greek  confederations,  comix  St.  Croix,  Anc.  Gouv.  F^d.,  and 
others  cited  in  K.  F.  Hermann,  i.,  §^  177-189,  es]).  185,  n.  i  ;  Sclidm. 
u.  s.,  ii.,  101-114  ;  Brandstatter,  die  gescliiclitcn  des  Aetol.  landes, 
etc.  (1844),  and  Mr.  E.  A.  I'recman's  Hist,  of  Fed.  Gov.,  vol.  i., 
1863,  ]).  77  onw. — a  work  wiiich  needs  no  praise. 

f  Conip.  esp.  K.  F.  Herm.,  i.,  §§  179-180. 


CONFEDERATIONS. 


I8l 


they  maintained  the  spirit  of  independence  even  when  the 
greater  part  of  Greece  fell  under  the  control  of  the  Macedo- 
nians. It  was  this  spirit  of  independence  which  led  them  to 
form  a  more  extended  confederation,  which  was  joined  by 
their  neighbors  on  the  east,  and  by  states  in  the  Peloponnesus, 
in  the  islands,  and  elsewhere.  The  league  decided  in  ques- 
tions of  war,  alliance,  and  peace  ;  it  had  a  stated  gathering 
once  a  year — at  which,  as  well  as  at  the  extraordinary  gath- 
erings, all  the  citizens  of  the  confederates  were  entitled  to  be 
present — and  a  council  or  senate  of  the  league,  which  was  a 
permanent  institution.  This  senate  seems  to  have  borne  the 
name  of  apocleti,  and  another  board,  the  synedri,  may  have 
been  a  committee  selected  from  it.  What  their  power  was, 
cannot  be  ascertained  with  exactness,  but  they  felt  them- 
selves obliged  to  bring  some  matters  of  business  before  spe- 
cial meetings  of  the  assembled  confederates.  The  administra- 
tive officers  of  the  league  were  elected  in  the  regular  autum- 
nal meetings.  At  the  head  stood  a  sh'atcgns,  who  presided 
both  in  the  general  meetings  and  in  those  of  the  councils. 
Next  to  him  ranked  the  commander  of  horse,  and  the  secre- 
tary {graininateus). 

The  rude  .^tolians  did  not  well  agree  with  the  finer 
Greeks,  and  after  their  wars  with  Antigonus  Doson  and 
Philip  (b.  C.  229-220),  taking  sides  with  the  Romans  first  and 
against  them  afterwards,  were  forced  in  189  to  make  a  league 
which  virtually  rendered  them  subjects  of  the  Roman  state.* 

The  Acha;ans,  driven  from  their  homes  in  the  interior  of 
The  Achian  Pcloponncsus  by  the  invading  Dorians,  ex- 
pelled  the  lonians  from  the  northern  strip  of 
coast,  and  thenceforth,  through  the  times  when  Greece  was 
in  its  bloom,  were  a  second-rate  collection  of  city-states, 
twelve  in  number  at  first,  lying  aside  from  the  main  stream 
of  Grecian  movements.  They  represent  the  noble  race  who 
figure  in  the  Homeric  poems,  and  were  for  an  uncertain 
length  of  time  under  the  government  of  twelve  kings,  one  of 


Coin[).  Schumann,  ii.,  201-206. 
t 


l82 


POLITICAL  SCIENCE. 


whom  was  superior  to  the  rest.  After  the  kings,  came  mod- 
erate democracies  without  a  noble  class.  They  had  some 
kind  of  league  between  themselves,  but  not  so  close  a  one  as 
to  prevent  their  taking  different  sides  in  the  Peloponnesian 
war.*  When  the  Macedonians  became  predominant  in  Greece, 
the  Achsans  fell  under  their  control,  either  receiving  garri- 
sons of  that  power  into  their  cities,  or  obeying  tyrants  who 
were  devoted  to  its  interests.  The  league  or  union  was 
intermitted  during  this  time  until  279,  when  the  invasion  of 
Greece  by  the  Gauls,  and  the  confusion  in  Macedonia,  before 
Antigonus  Gonatas  secured  his  power,  presented  a  favorable 
opportunity  for  its  reconstruction.  This  was  effected  by 
the  four  most  western  of  the  cities,  and  was  joined  within  five 
years  by  three  others — .^gium,  which  expelled  its  Macedoni- 
an garrison,  Bura,  and  Ceryneia,  which  were  either  freed  from 
or  forsaken  by  their  tyrants.  Three  others, — all  that  remain- 
ed of  the  twelve  old  states, — ^geira,  Pellene,  and  Leontium, 
came  in  somewhat  later,  f  The  latter  was  not  a  member  of  the 
old  confederacy,  and  Ceryneia  succeeded  to  the  place  of  AigTC. 

The  federal  constitution  in  its  new  shape  was  formed  about 
274. ^  Like  the  members  of  previous  leagues,  the  members 
retained  their  city  assemblies  and  magistrates,  and  the  same 
arrangement  was  of  course  maintained  when  other  city-states 
were  admitted  into  the  confederacy ;  nor  was  there  any  reor- 
ganization of  local  districts  subordinate  to  each  state,  but,  as 
Mr.  Freeman  points  out,  the  dependent  cantons  of  states 
within  the  league  had  no  direct  share  in  its  concerns.  Yet 
they  may  have  been  demes,  containing  citizens  with  full  rights, 
like  those  of  Attica. 

Mr.  Freeman  regards  the  league  as  a  staatcnbund  and  not 

*  An  evidence  tliat  the  league  subsisted  at  tlie  time  when  Helice 
was  overwhelmed  by  an  eartlKjuake,  is  furnisiied  by  Strabo,  b.  viii., 
8,  p.  385,  a  passage  referred  to  by  Mr.  l<"reeman  and  others.  It 
shows  also  that  the  i)eople  of  Helice  would  not  do  what  the  koivov 
asked  of  them  by  vote. 

f  /V.^x  and  Helice  no  longer  existed.  Rhypcs  was  a  small  place ; 
so  was  01  en  us. 

I  K.  F.  Henn.  says  280,  i.,  §  188. 


CONFEDERATIONS. 


183 


as  merely  a  biiiidesstaat .  As  this  is  the  most  interesting 
point  relating  to  the  league  except  its  brilliant  history,  which, 
however,  does  not  concern  us,  we  shall  now  endeavor  to  give 
the  details  of  the  constitution. 

1.  All  external  relations  were  committed  to  the  confedera- 
Extcrnai  relations  t'on  and  its  oflicers.    This  was  essential  to  a 

of  the  league.  tolerably  compact  ^/'rtrt/f;;^^//;/^.  Thus  all  ques- 
tions of  peace,  war,  and  alliance,  all  diplomatic  relations  to 
foreign  states,  belonged  to  the  league,  its  assemblies  and  magis- 
trates. But  the  rule  in  respect  to  sending  and  receiving  em- 
bassies was  not  strictly  observed.  Corinth,  after  its  union 
with  the  league,  received  ambassadors  from  Rome  (b.  C.  228), 
like  a  sovereign  city-state.  And  in  later  times  there  were 
not  infrequent  instances  of  legations  from  members  to  foreign 
powers  ;  one  of  these  missions,  in  B.  C.  224,  occurred  with  the 
consent  of  the  federal  body;  others,  without  taking  the  trouble 
to  ask  for  it.  At  length,  in  the  treaty  of  H.  C.  198,  with  Rome, 
it  was  provided  that  all  embassies  must  proceed  from  the  gen- 
eral synedrium  of  the  Achaeans.  Admitting  that  this  was  but 
a  confirmation  of  a  previous  rule,  we  find,  already,  a  some- 
what weak  notion  of  what  was  required  by  the  obligation  of 
the  confederate  states,  and  no  known  effort  to  compel  obedi- 
ence. "  But  this  agreement  was  of  course  broken,"  says  Mr. 
Freeman,  "  whenever  its  violation  suited  Roman  interests. 
Sparta,  especially,  and  Messene — cities  joined  to  the  league 
against  their  will — were  constantly  laying  their  real  or  sup- 
posed grievances  at  the  feet  of  the  Roman  senate."  In  the 
case  cited  by  him  from  Pausan.,  vii.,  §  9,  the  body  sent  ambas- 
sadors to  Rome  to  counteract  those  of  the  Laceda;monians  who 
belonged  to  their  body.  Think  of  the  United  States  sending 
an  embassy  to  Great  Britain  to  oppose  one  from  New  York  ! 
Would  we  not  suppose  in  such  a  case  that,  if  there  had  ever 
been  a  league  of  the  stricter  kind,  it  was  near  its  extinction  ? 

2.  As  in  all  the  earlier  confederations  with  the  constitution 
Its  primary  .isscm-      which  wc  are  acquaiutcd,  the  Achivan  league 

had  a  primary  assembly.     Kvery  citi/t-n  of  all 
the  towns,  at  least  from  the  age  of  thirty  upwards,  could 


POLITICAL  SCIENCE. 


by  right  be  present,  to  speak  and  vote.  There  was  no  census 
limiting  the  right  of  partaking  in  the  assembhes,  and  in  its 
first  form,  when  the  league  embraced  Achaia  only,  there  was 
no  fear  of  a  democratic  element  ;  for  the  distance  to  the  place 
of  meeting,  from  the  more  remote  parts,  or  from  the  moun- 
tainous region,  must  have  kept  many  of  the  lower  class  of 
citizens  away.  Dyme,  for  instance,  the  most  western  town, 
must  have  been  more  than  fifty  miles  by  the  road  from  the 
sacred  grove  of  Zeus  Hamagyrius,  near  .i^^gium,  where  the 
stated  meetings  were  held  twice  a  year,  just  after  the  vernal 
equinox,  and  in  autumn.  Besides  these  meetings,  extraor- 
dinary ones  also  were  called,  at  first  to  the  same  place,  but 
afterwards,  when  the  confederation  spread  over  other  parts  of 
the  Peloponnesus,  to  other  places  outside  of  Achaia  proper, 
as  to  Sicyon  and  Argos.  A  meeting  held  at  Corinth,  in  May, 
B.  C.  146,  shows  how  unfit  was  a  primary  assembly  in  a  pop- 
ulous town  to  take  part  in  the  affairs  of  a  large  community. 
The  Roman  ambassadors  were  received  here  with  derision 
and  tumult,  "  for  there  was  gathered  a  crowd  of  operatives 
and  artificers,  such  as  never  had  been  present  before. "  (Polyb. , 
xxxviii.,  4.)  In  fact,  the  measures  taken  at  this  assembly  led 
to  a  war  with  Rome,  to  the  destruction  of  Corinth,  and  the 
final  dissolution  of  the  league  soon  afterwards.  The  Romans 
then  altered  the  constitutions  of  the  cities  from  the  democratic 
to  the  aristocratic  (or  timocratic)  form,  and  forbade  the  citi- 
zens of  one  town  to  own  lands  within  the  limits  of  another. 

It  was  a  project  of  Philopoemen  (about  189  B.  C.)  to  give  up 
the  plan  of  meeting  constantly  at  the  same  place,  and  to  re- 
quire all  the  cities  of  the  league  to  take  their  turns  in  receiving 
it.  The  assembly  was  held  at  Argos,  and  as  an  ordinary 
meeting  was  again  held  at  Megalopolis  afterwards,  it  is  likely 
that  this  change  w^as  effected.*  It  is  probable  that  the  gath- 
ering at  a  small  city  like  ^gium,  out  of  the  way  for  many  of 

*  Schumann,  ii.,  109,  doubts  this,  but  Mr.  Freeman  jiroves  it  from 
Polyb.,  xxiv.,  12,  "for  as  if  on  puri)osc  it  happened  that  the  Ach;e- 
aiis  were  tiicn  again  collecting  together  at  Megaloi)olis  (U  rrjv  Bivrtpav 
avvoBov." 


CONFEDERATIONS. 


185 


the  non- Achaean  states,  was  very  inconvenient,  and  that  the 
presence  of  the  members  at  various  places  was  regarded  as 
tending  to  combine  the  parts  together  and  to  lessen  any 
jealousy  that  might  be  felt  towards  the  original  Achsean 
founders. 

The  assemblies  were  dissolved  at  the  end  of  the  third  day's 
session.  The  subjects  which  came  before  them  were  all  those 
for  which  the  league  was  founded,  "  peace,  war,  treaties  with 
foreign  states,  legislative  ordinances,  elections  of  federal  offi- 
cers, courts  in  relation  to  offences  against  the  union." 
Whether  also  controversies  between  states  belonging  to  the 
league  were  brought  before  the  assemblies,  or  a  special  court 
was  organized  for  this  purpose,  we  are  unable  to  decide.* 

3.  There  was  a  standing  senate  which  seems  always  to  have 
been  in  session  when  the  general  assemblies 
were  held,  and  to  have  met  from  time  to  time 
as  their  business  required.  On  matters  of  less  importance 
they  could  decide  of  themselves  ;  things  of  greater  moment 
were  required  to  be  brought  before  the  assemblies.  Of  how 
many  the  senate  consisted  we  are  not  informed.  That  they 
received  pay  for  their  services,  like  the  senators  at  Athens  and 
elsewhere,  is  not  improbable  in  itself,  but  it  is  by  no  means 
established  by  Schumann's  citation  ;  in  fact,  Mr.  Freeman, 
from  the  same  place  of  Polybius,  argues  just  the  contrary. 
(Polyb.,  xxiii.,  7.)  In  that  passage  ambassadors  of  I'^umcnes 
are  spoken  of  as  offering  on  his  part  "  one  hundred  and  twenty 
talents  to  be  put  on  interest  by  the  league  for  the  purpose  of 
paying  the  senators  on  account  of  the  public  meetings."  This 
might  be  to  relieve  the  states  from  the  burden  of  contributing 
to  their  support,  or  it  might  be  a  new  plan  altogether.  Wlicn 
it  was  made  known  to  the  assembl)'  (roU  ttoXXoU)  a  jx-rson 
from  Sicyon  arose  and  said  that,  "  while  the  gift  was  worthy 
of  him  who  offered  it,  it  was,  when  viewed  in  regard  to  the 
design  of  the  offerer,  base  and  lawless.  For  wliereas  the  laws 
forbade  any  one,  private  person  or  magistrate,  to  take  gifts 


Schom.  u.  s.  ii.   1 10. 


POLITICAL  SCIENCE. 


from  a  king  on  any  pretext  whatever,  they  were  all  together 
openly  bribed  by  this  offer,  if  they  accepted  it,  which  thus 
would  be  of  all  things  most  unlawful  and  confessedly  shame- 
ful." These  and  other  arguments  led  the  assembly  to  reject 
the  gift.  Still  another  passage,  in  which  Polybius  (xxviii.,  7) 
speaks  of  a  general  having  spent  a  considerable  sum  of  money 
on  his  office,  shows  that  he  had  small  pay  or  none  at  all. 
All  the  cities  were  equal  in  having  one  vote  each,  as  every 
Equaiit>- of  mem.  "ation  belonging  to  the  Amphictyonic  council 
bers  of  the  league,  i^^^  ^.^^q  cach.  Probably  this  was  a  common 
rule  in  Greek  confederations,  which  the  fear  of  the  predomi- 
nance of  a  large  member  would  naturally  suggest.  It  was  also 
necessary,  in  order  to  prevent  the  citizens  of  the  place  where 
the  meeting  was  held  from  outvoting  those  of  many  cities 
put  together,  and  lest  cabals  for  a  particular  object  should  call 
together  the  partisans  of  certain  local  schemes  in  great  force. 
It  was  originally  no  very  unequal  method  of  obtaining  ex- 
pression of  the  general  will,  for  there  was  no  such  large  dif- 
ference of  population  between  the  Achaean  towns  as  to  make 
it  appear  oppressive,  and  when  the  league  was  enlarged,  the 
new  members  accepted  it  for  such  as  it  was. 

4.  The  magistrates  of  the  league  were,  a  general  at  the  head 
Magistrates  of   '^^  afTairs,  ten  dc7niurgi,  also  called  vaguely 
league.  arcJioiitcs,  whom  Mr.  Freeman  calls  the  general's 

ten  ministers,  a  secretary,  an  under-general,  and  a  master  of 
horse, — if  indeed  these  two  latter  officers  had  anything  to  do 
with  state  affairs,  and  were  not  rather  confined  to  military 
duties.  What  favors  this  latter  supposition  in  regard  to  the 
general-in-chicf  is  that  when  he  died,  the  last  preceding 
officer  of  the  same  name  took  his  place.  The  relation  of 
the  ten  dcmiiirgi  to  the  general  does  not  clearly  appear. 
The  number  ten  points  to  the  times  of  the  formation  of  the 
league,  when  there  were  but  ten  cities,  but  it  is  by  no  means 
certain  that  the  ten  were  always  afterwards  selected  from  the 
early  members  of  the  body.  They  seem  to  have  had  a  very 
important  part  in  proceedings,  and  were  naturally  chosen  at 
the  same  elections  with  the  other  officers.    That  they,  to- 


CONFEDERATIONS. 


187 


gether  with  the  general,  had  a  voice  in  caUing  extraordinary 
meetings,  appears  from  Polybius  {v.,  I  ;  xxiii.,  10).  That 
unanimity  on  their  part  was  not  essential,  is  also  established. 
The  general  was  the  great  man  of  the  confederation,  first 
in  war,  first  in  peace.    The  whole  history  of  the 

The  general.  .  .  ,  „ 

time  in  southern  Greece  revolves  around  men 
who  filled  this  office,  such  as  Aratus,  Lydiadas,  Philopcemen. 
The  general  presided  in  the  assemblies,  and  had  the  power 
to  summon  extraordinary  meetings,  at  which  only  those  sub- 
jects could  be  laid  before  the  league  for  which  they  had  been 
gathered  together.  The  powers  of  the  general  and  of  the 
ten  detniurgi  in  regard  to  the  business  to  be  brought  before 
an  assembly  are  not  positively  to  be  gathered  from  the  an- 
cient authorities  ;  but  in  one  instance,  where  the  question 
related  to  alliance  with  the  Romans  (Livy,  xxxii.,  22),  while 
five  of  the  ten  declared  themselves  ready  to  bring  that  sub- 
ject before  the  council  and  put  it  to  vote,  an  equal  number 
refused,  on  the  ground  that  it  was  against  a  law  either  for  the 
magistrates  to  refer,  or  for  the  council  to  decree,  anything 
which  was  contrary  to  the  Macedonian  alliance.  Here  we  have 
rules  binding  the  presiding  general  and  the  board  of  ten  in  a 
special  case,  and  this  may  imply  that  in  general  their  action 
was  more  free.  In  the  instance  mentioned,  that  one  of  the 
five  who  refused  to  lay  the  subject  of  an  alliance  with  the 
Romans  before  the  council  withdrew  his  opposition  ;  and  the 
measure  was  carried,  it  would  seem,  against  the  law,  much 
to  the  dissatisfaction  of  some  states,  which  left  the  meeting 
before  the  votes  were  taken  (Livy,  u.  s.  ;  comp.  Freeman, 
§  15). 

The  general,  according  to  Plutarch  (vit.  Arat.,  %  24,  vit. 
Clcom.,  <S,  15),  could  not  be  chosen  for  two  successive  years, 
but  could  be  re-elected  one  year  after  the  expiration  of  his 
office,  and  so  after  any  number  of  intervals.  Accordiiii^ly, 
Aratus  was  elected  about  twelve  times  in  observance  of  this 
rule,  being  when  out  of  office  in  fact,  as  Plutarch  expresses 
it,  a  magistrate.* 

*  Conip.  Mr.  Freeman's  note  at  the  end  of  iiis  eighth  chapter. 


i88 


POLITICAL  SCIENXE. 


5.  Of  the  powers  of  the  senate,  of  the  power  to  raise  soldiers 
and  money,  of  the  laws  relating  to  commercial  intercourse, 
very  little  is  known.  We  have  already  seen  that  there  was  a 
senate,  but  how  it  was  constituted  is  uncertain,  and  it  is  only 
certain  that  like  others  in  Greece  it  had  the  preparatory  con- 
sultations in  its  hands  for  the  meetings  of  the  assemblies,  and 
that  decrees,  declarations  of  war,  and  the  like,  were  submitted 
to  them,  or  originated  among  them,  before  being  proposed 
to  the  assemblies.  Thus  it  is  said  (Polyb.,  ii. ,  46^  that  the 
heads  of  the  Achaean  government  resolved,  after  collecting 
the  Achaeans  (that  is,  all  the  confederates,  whether  Achieans 
by  name,  Arcadians,  or  othersi,  in  conjunction  with  the  senate, 
to  enter  into  open  hostilities  with  the  Lacedaemonians.  The 
power  of  raising  money  must  in  some  way  have  belonged  to 
the  league,  since  it  kept  large  armies  in  the  field  ;  but  this 
seems  to  have  been  done  by  means  of  requisitions  voted  by 
the  council  in  its  meetings,  according  to  a  scheme  of  distribu- 
tion agreed  upon  among  the  states.  Polybius  tells  us  that 
Aratus  was  unable  to  keep  the  mercenaries  together  because 
wages  fell  short  in  the  war  against  Cleomenes.  The  western 
states  of  Achaia,  therefore,  despairing  of  help  from  the  league, 
agreed  together  not  to  pay  over  the  contributions  due  from 
them  to  the  Achaeans,  but  to  hire  troops  for  themselves,  and 
in  this  way  to  defend  their  territory.  They  acted  well  for 
themselves,  but  ill  for  the  confederacy,  continues  the  historian  ; 
they  should  have  made  extraordinary  exertions  for  their  own 
defence,  and  paid  their  contributions  over  as  usual  (Polyb., 
iv.,  60).  Here  we  seem  to  learn  that  the  system  of  enlistment 
for  pay,  which  was  common  elsewhere  in  the  later  age  of 
Greece,  as  among  the  Arcadians  for  instance,  furnished  them 
with  their  supplies  in  part,  although  native  soldiers  of  the 
league,  especially  horsemen,  are  mentioned. 

6.  The  subject  of  federal  courts  still  remains,  and  we  cannot 

doubt  that  there  were  such,  if  the  analogy  of 

Federal  courts.         ,        ^        ,    .  i  i  .•  r 

other  Greek  leagues  and  even  the  practice  ot  un- 
confederated  Greek  states  is  to  be  any  guide  for  our  opinion. 
But  little  is  known  of  such  courts,  and  whether  a  necessity 


CONFEDERATIONS. 


was  felt  for  provisions  otlier  than  must  have  existed  before 
the  formation  of  the  league,  such  as  free  access  of  complain- 
ants to  a  defendant's  courts  in  another  town,  and  courts  of 
arbitration  between  states,  may  well  be  doubted.  So  much, 
however,  is  certain,  that  offences  against  the  league,  especially 
maladministration  of  men  in  public  trusts,  could  be  taken 
notice  of  and  punished  by  the  council — whether  after  trial, 
before  the  assembly  or  the  senate,  or  some  separate  court, 
does  not  appear.  The  examples  of  such  judgments  which 
are  to  be  met  with  occur  in  the  later  and  worse  days  of  the 
confederacy  ;  nor  are  they  entirely  clear  in  their  details. 
One  instance  is  where,  after  the  death  of  the  Spartan  tyrant 
Nabis  (b.  C,  192),  the  Spartans  are  forced  to  join  the  league, 
on  which  occasion  it  is  said  that  the  Ach^eans  gave  strict 
judgments  against  them,  which  seems  to  mean  nothing  more 
than  that  measures  of  some  severity  relating  to  them  were 
adopted  by  the  council  at  one  of  its  meetings,  and  not  by  a 
court.  (Pausan.,  vii.,  §  8,  5.)  Not  long  after  this  the  council 
imposes  on  certain  disaffected  Spartans  the  penalty  of  death, 
(lb.,  vii.,  §  9,  3.)  Again,  about  B.  C.  150,  on  account  of  the 
affairs  of  Oropus  (see  Freeman,  ch.  ix.,  p.  688,  onw.),  Calli- 
crates  accused  the  general  Menalcidas  of  crime,  when  his 
year  of  office  had  expired — which  last  particular  shows  that 
the  chief  magistrate  could  not  be  prosecuted  during  office. 
(Pausan.,  vii.,  <^  12,  2.)  Another  magistrate,  the  general  of 
the  year  149,  having  failed  to  take  Sparta  when  this  seemed 
to  be  practicable,  was  brought  before  the  council  on  trial  and 
fined  in  the  sum  of  fifty  talents,  which  being  unable  to  pay 
he  went  into  exile,  (ib.,  vii.,  §  13,  5.)  Tliis  is  all  that  I  have 
succeeded  in  finding  that  relates  to  public  trials  :  in  all  cases 
the  council  itself,  or  some  component  part  of  the  council, 
listened  to  the  charges  and  gave  the  verdict.* 

Such  arc  the  particulars  of  the  constitution  of  a  league. 
Results  of  the  which  arose  from  motives  of  sclf-dcfoncc,  was 
league.  pushed  by  its  successes  beyond   its  original 

humble  and  local  plans,  got  involved  in  the  affairs  of  Rome 
*  A  passage  of  Polybius  bearing  on  courts  will  be  noticed  below. 


POLITICAL  SCIENCE. 


and  of  Macedonia,  and  after  sundry  vicissitudes  was  dissolved 
in  B.  C.  145.  Ought  it  to  be  called  a  state  formed  out  of  a 
league,  or  a  mere  league  of  states  ?  In  a  noted  passage  of 
Polybius  (ii.,  37,  end),  the  opinion  of  this  eminent  historian, 
a  contemporary  of  its  last  days,  and  whose  father  was  one  of 
its  best  and  most  illustrious  supporters,  would  seem  to  make  for 
the  propriety  of  calling  it  a  ^/rt:/^?.  He  says  that  "  while  many 
had  attempted  in  the  past  times  to  bring  the  Peloponnesians 
into  a  community  of  interests,  and  no  one  was  able  to  reach 
this  point  because  in  every  instance  they  endeavored  to  do 
it  not  for  the  sake  of  the  common  liberty  but  of  their  own 
power,  the  Acha;an  movement  met  with  a  different  result. 
So  great  a  unity  was  effected  here,  that  not  only  the  com- 
munity of  allies  and  friends  was  brought  about,  but  they 
made  use  also  of  the  same  laws,  and  weights  and  measures 
and  coins,  and,  besides  all  this,  of  the  same  magistrates,  sena- 
tors and  judges  ^  and  in  fact,  Peloponnesus,  as  a  whole,  dif- 
fered from  a  single  cit)^  only  in  this,  that  its  inhabitants  were 
not  included  within  the  same  surrounding  wall,  while  all 
things  else  were  the  same  and  similar  both  in  a  public  respect 
and  for  individuals  in  their  different  cities." 

If  we  could  persuade  ourselves  that  this  was  an  unexag- 
gerated  description,  we  should  have  to  say  that  the  relation 
of  the  central  power  to  the  cities  composing  the  union  was 
more  like  that  of  a  state  to  municipalities  than  like  any  other 
union  such  as  we  find  among  the  ancient  republics.  But  it 
can  be  no  other  than  an  exaggeration,  unless  the  author 
meant  by  the  same  laws,  the  same  as  far  as  their  united 
interests  were  concerned  ;  and,  by  the  same  magistrates, 
senators,  and  judges,  common  officers  of  this  kind  for  poli- 
tical purposes.  It  is  very  natural  to  suppose  also  that  a  new 
intercourse  sprang  up  among  the  states  of  the  union,  which 
of  itself  would  assimilate  them  to  each  other  in  important 
respects.  At  the  time  of  its  formation  there  were  t)'rants  in 
different  cities,  and  it  was  natural  that  the  league,  which  had 
put  down  those  within  its  original  narrow  borders,  should 
lend  its  aid  to  kindred  movements,  as  its  sphere  became  more 


CONFEDERATIONS. 


191 


extensive.  The  states  voted  as  such.  No  tyrant  could  have 
appeared  to  cast  his  vote  for  his  city  consistently  with  its 
constitution  and  objects.  As  for  weights,  measures  and  coins, 
they  find  their  way  of  themselves,  or  it  is  easy  for  independ- 
ent states  to  fix  on  a  common  standard.  Unity  in  this 
respect  is  no  proof  of  close  political  unity,  as  the  conventions 
of  the  present  day,  made  with  this  in  view  by  states  widely 
unlike  in  form  and  spirit,  show  with  sufficient  clearness. 

We  must,  in  view  of  all  the  history  of  the  Achaean  confede- 
Not  a  strict  con-  ^acy,  rank  it  among  the  looser  governments  of 

federation.  ^j^^j.  ^^^^^  ^^j.    ^^^^    ^j^^  which  divldcS 

the  two  classes  from  one  another.  To  the  ancients  it  realized 
the  idea  of  a  close  union,  because  it  went  so  much  farther  in 
that  direction  than  others  had  done  before  it,  but  it  betrays 
its  character  by  several  marks.  First,  it  seems  not  to  have 
had  the  necessary  financial  or  judicial  powers.  I  am  aware 
that  here  it  may  be  said  that  if  we  knew  more  of  the  internal 
constitution  and  the  laws,  we  might  come  to  a  dificrent  mind. 
This  may  be  true,  but  nothing  shows  that  the  league  had 
even  the  powers  exercised  by  Athens,  when  she  was  at  the 
head  of  the  alliance  of  the  sea-states,  when  she  sent  out  her 
collectors  to  all  the  allies  and  enforced  the  payment  of  their 
quotas.  As  for  the  courts,  the  strong  probability  is  that  this 
part  of  the  constitution  was  wholly  in  the  background. 
Again,  to  some  extent  the  confederates — those  outside  of 
Achaia  at  least — seemed  to  have  regarded  the  obligation  as 
not  a  very  binding  one.  They  come  in  and  go  out,  as  if  the 
confederation  was  no  more  than  a  common  treaty  of  alliance. 
Thus  Sparta  seceded  in  u.  C.  189,  and  Messene  in  183.  The 
separate  league  of  the  western  cities  (h.  C,  2 1 8)  was  dictated 
by  necessity,  yet  it  gives  an  indication,  as  we  have  seen,  of 
the  prevalent  feeling  in  the  oldest  members  of  the  union. 
They  refuse  for  the  time  all  payments  of  their  quotas  of 
money  to  the  federal  government.  Mr.  Freeman  (p.  536) 
justly  denies  that  this  was  secession,  but  calls  it  nnllification. 
It  was,  however,  more  like  the  action  of  the  governors  of  two 
of  the  New  England  states  in  18 12,  when  they  refused  on 


192 


POLITICAL  SCIENCE. 


constitutional  grounds,  as  they  interpreted  the  federal  instru- 
ment, to  put  their  quotas  of  militia  under  the  command  of 
the  president.  And  it  is  worthy  of  notice  that  these  meas- 
ures of  the  federal  governors  were  spoken  of  by  the  presi- 
dent, belonging,  too,  to  the  democratic  party — as  frustrating 
♦the  authority  of  the  United  States  and  showing,  if  they  were 
a  correct  exposition  of  the  constitution,  that  the  United 
States  "  are  not  one  nation  for  the  purpose  most  of  all  re- 
quired." 

Again,  how  inconsistent  with  the  notion  of  a  federal  repub- 
lic is  the  treatment  of  Aratus  by  the  league  or  its  chief  offi- 
cers on  more  than  one  occasion.  Thus,  after  the  defeat  of 
Laodiceia,  in  B.  C.  226,  the  assembly  voted  "not  to  give 
him  money  for  the  war,  nor  to  maintain  mercenaries,  but 
that  if  it  were  necessary  to  go  to  war,  he  must  provide  his 
own  supplies."  (Plut.  vit.  Arat.,  37,  in  Freeman,  p.  452.) 
And  again,  in  B.  c.  223,  after  the  loss  of  Corinth,  the  assem- 
bly conferred  on  him  absolute  power,  and  had  a  guard  of 
citizens  granted  to  him  for  the  defense  of  his  person.  (Plut., 
u.  s.,  §  41.)  Nor  was  he  restrained  in  his  unauthorized  nego- 
tiations with  the  Macedonian  kings. 

The  constitution  of  the  Achaean  league,  then,  would  seem 
to  have  had  no  adequate  powers  for  state  action,  and  hence 
irresponsible  power  had  to  supply  their  place.  From  the  ces- 
sion of  the  citadel  of  Corinth  in  the  year  B.  C.  223,  according 
to  Mr.  Freeman,  "  the  glory  of  the  league  passes  away — the 
free  and  glorious  league  of  so  many  equal  cities  acting  by  a 
common  will ;  the  league  which  had  warred  with  kings,  and 
had  overthrown  and  converted  tyrants,  had  now  become  a 
thing  of  the  past."  And  yet  this  was  seventy-five  years 
before  its  dissolution,  and  less  than  thirty  from  its  first  begin- 
ning to  act  an  important  part. 

Are  we  not  justified,  then,  in  saying  that  while  the  Achaean 
league  was  a  step  forward,  and  put  the  power  of  joint  action 
in  confederations  in  a  new  light,  it  did  not  show  the  strength 
or  the  self-subsistence  of  this  kind  of  government  in  a  way  to 
commend  them  to  posterity.     When  it  went  beyond  the 


CONFEDERATIONS. 


limits  of  the  ten  cities,  it  came  into  conflict  with  powers  with 
Avhich  it  could  not  cope,  save  by  making  dangerous  alliances, 
and  it  flourished  in  an  age  when  a  mighty  enemy  from  the 
west  was  at  hand  ready  to  swallow  up  every  independent 
institution.  It  failed,  first,  because  Greek  political  habits 
could  not  admit  of  such  a  form  of  polity  on  a  large  scale,  if  on 
any  scale  ;  iiext,  because  it  was  in  a  manner  forced  to  out- 
grow its  original  institutions,  and  because  these  institutions 
were  not  well  enough  compacted  ;  and  finally ,  because  the 
enemies,  at  once,  of  the  Achsean  polity  and  of  Greek  inde- 
pendence, were  too  strong. 

A  small  confederation  outside  of  Greece,  in  a  comparatively 
secure  and  obscure  position,  deserves  a  passing 

The  Lycian  league.  ,  .....  1  r 

notice,  on  account  of  its  givmg  an  example  of 
a  better  type  of  confederation  tlian  had  been  contrived  be- 
fore. The  account  of  it  in  Strabo  (xiv.,  pp.  664,665) — see 
Mr.  Freemen,  208-217 — follows  :  "  The  sy sterna  or  con- 
federation of  the  Lycians  consist  of  twenty-three  cities,  which 
come  together  in  a  common  council  through  their  delegates  at 
any  city  which  they  see  fit  to  make  the  place  of  meeting.  The 
largest  cities  have  three  votes  each,  those  ne.xt  to  them  in 
population,  two,  those  in  the  third  rank,  one."  Strabo  men 
tions  six  cities  as  the  largest,  and  probably  these  only  have 
the  three  votes  apiece.*  "  The  contributions  and  other  ser- 
vices," he  adds,  "  are  in  the  same  ratio  with  the  votes.  In  a 
council  a  Lyciarch  is  first  chosen,  then  the  other  magistrates  of 
the  confederation.  Courts  of  justice  also  are  appointed  by 
common  vote  (or  for  common  purposes).  Formerly,  they  con- 
sulted on  war,  peace,  and  alliance,  but,  naturally,  now  that 
they  are  under  the  Romans,  they  can  do  this  no  longer.  In  like 
manner  also  judges  and  magistrates  are  chosen  in  proportion  to 
the  votes  from  each  of  the  cities."  This  last  sentence  cannot 
mean  that  the  town  judges  and  officers  were  appointed  in  the 
general  council,  which  would  be  contrary  to  all  the  analogies 

*  With  llic  licip  of  coins,  tlic  rciiKiining  citirs  of  tlu'  I.ycian  li-ague 
can  all  or  nearly  ail  be  inadc  out.  See  Mai(iuardt,  Riini.  Staats- 
verwalt.  i.,  j).  219. 

VOL.  11. — 13 


194 


POLITICAL  SCIENCE. 


of  free  constitutions  ;  but  either  that  the  appointments  made 
by  the  league  followed  the  number  of  votes  of  each  city,  or 
that  there  were  federal  magistrates  and  judges  in  each,  varying 
in  number  with  the  votes  which  it  cast.  The  first  seems  to  be 
the  meaning.  Strabo  goes  back  to  the  choices  made  in  the 
council,  and  adds  as  an  after-thought,  that  the  offices  are  dis- 
tributed— naturally,  excepting  the  Lyciarch — in  such  a  way 
that  every  town  should  have  its  share  according  to  its  scale 
of  population. 

Here  three  things  are  worthy  of  notice  :  the  absence  of  a 
popular  assembly  meeting  at  the  same  time  with  the  council, 
which  was  a  very  bad  feature  of  the  Achaean  league,  but 
somewhat  more  endurable  in  a  smaller  district  ;  the  varying 
number  of  votes  in  the  council,  which  would  certainly  tend 
to  allay  jealousy  and  the  feaY  of  a  hegemony  within  a  confed- 
eration ;  and  the  federal  courts.  The  league  continued  under 
Roman  supremacy  until,  in  the  reign  of  Claudius,  A.D.  43, 
Lycia  was  constituted  with  Pamphylia  into  a  Roman  prov- 
ince. It  seems  for  little  while  afterwards  to  have  had  a  new 
enjoyment  of  its  freedom. 

209. 

Passing  over  a  long  tract  of  time,  Ave  come  next  to  the 
Germanic  confed-  Gcmian  confcdcratious.    This  grew  out  of  the 
erations.  German  feudal  kingdom  with  the  imperial  power 

attached,  which  was  gradually  weakened  by  its  conflicts  with 
the  spiritual  power,  and  by  the  concessions  to  the  princes  and 
other  magnates.  The  election  of  the  king,  consequent  on 
the  failure  of  the  Carolingian -family,  and  the  attempts  of  the 
feudatories  and  of  the  pope  to  prevent  any  family  from  be- 
coming too  mighty,  greatly  aided  the  approach  of  the  princes 
towards  territorial  sovereignty  which  marked  the  German 
empire,  after  other  parts  of  Europe  were  beginning  to  be 
nationali/.ed  under  a  central  authority.  In  the  thirteenth  cen- 
tury the  German  realm  was  so  disintegrated  after  the  death 
of  the  last  emperor  of  the  Ilohenstauffen  family,  that  some 
writers  call  it  no  longer  a  feudal  monarchy  but  a  republic, 


CONFEDERATIONS. 


whose  members,  now  in  greater,  now  in  smaller  districts, 
partly  possessed,  partly  sought  for  territorial  dominion. 
"  And  to  this  disintegration  with  little  or  no  power  in  the 
head,  which  Prof.  H.  Leo  strangely  calls  a  republic,  he  attri- 
butes the  "  manifoldness  and  depth  of  German  culture."  * 
We  pass  over  the  interval  between  this  period  and  the 
German    union   reformation,  which  is  marked  by  the  accumula- 

after  peace  of  \V  est- 

phaiia.  tion  of  powcr  and  territory  in  the  south-east 

of  Germany  in  the  hands  of  the  descendants  of  Rudolph  of 
Hapsburg,  who  was  chosen  German  king  on  account  of  his 
insignificance.  We  pass  over  the  causes  which  led  at  length 
to  placing  the  crown,  under  the  forms  of  election,  on  the  head 
of  successive  members  of  this  family  ;  and  also  over  the  terrible 
strife,  caused  by  a  division  of  Germany  between  two  hostile 
religions,  as  well  as  by  the  hope  of  the  emperor  to  regain 
the  powers  which  the  princes  had  appropriated  to  them- 
selves. The  thirty  years'  war  separated  Germany  still  more  ; 
and  we  call  the  state  of  things  which  followed  the  treaties  of 
Westphalia  a  confederation  of  the  looser  sort,  a  staatenbund, 
which,  however,  as  was  natural,  retained  many  usages  and 
ways  of  thinking  pertaining  to  the  old  feudal  times.  The 
old  German  empire  was,  however,  conceived  to  be  still  in  ex- 
istence. But  there  is  justice  in  what  Pufcndorf  says  in  his 
de  statu  imperii  (1660),  that  it  has  come  into  such  a  shape 
"  ut  neque  rcgnum  etiam  limitatum  ampliussit,  licet  exteriora 
simulacra  tale  quid  prae  se  ferant,  neque  exacte  corpus  ali- 
quod,  aut  systema  plurium  civitatum  foedere  nexarum,  scd 
potius  aliquid  inter  haec  duo  fluctuans."  f 

The  important  points  for  us  in  these  treaties  arc  not  the 
restitutions  and  satisfactions  for  injuries  in  the  war,  nor  the 
adjustment  of  questions  of  religious  property  and  confessional 
rights,  but  the  few  things  which  are  said,  in  Art.  v.,  53,  of 
the  peace  of  Osnabriick,  and  Art.  viii.  especially,  on  the  re- 
lations of  the  princes  and  independent  states  to  the  empire. 

*  H.  I.co,  Univer.salgescli.,  ii.,  250. 

t  I  owe  this  passage  to  Mr.  Montague  Ikrnartl,  Lecture  on  Diplo- 
macy, p.  53.  Loiul.,  1868. 


196 


POLITICAL  SCIENCE. 


"  The  estates  of  the  empire  are  to  enjoy  a  right  of  voting  in 
all  deliberations  on  affairs  of  the  empire,  especially  when 
laws  are  to  be  enacted  or  interpreted,  war  declared,  taxes 
laid,  levies  or  supplies  for  troops  ordered,  new  fortifications 
built  on  public  account  within  the  territory  of  the  estates,  or 
old  ones  strengthened  in  their  garrisons.  Also  when  treaties 
of  peace  are  to  be  made  or  other  matters  of  this  kind  trans- 
acted, none  of  these  things  or  any  thing  like  them  shall  ever 
be  done  or  allowed  save  by  the  free  suffrage  and  consent 
within  the  diet  of  all  the  estates  of  the  empire.  Especially, 
however,  the  right  of  making  treaties  with  each  other  and 
with  foreign  states  shall  be  forever  free,  for  their  own  con- 
servation and  security,  to  the  estates,  all  and  singular  ;  yet 
so  that  treaties  of  this  kind  be  not  against  the  emperor,  the 
empire  and  the  public  peace,  and  especially  against  this 
treaty  ;  and  they  shall  be  made  with  a  saving  of  the  obliga- 
tion by  oath,  whereby  each  estate  is  bound  to  the  emperor 
and  the  empire  "  (Art.  viii.,  §  2).  By  another  article  the 
emperor  promises  to  hold  a  diet  within  six  months  after  the 
ratification  of  the  peace,  and  as  often  afterwards  as  public 
advantage  or  necessity  shall  require  3).  By  another  still, 
the  free  towns  are  confirmed  in  all  their  privileges.  In  order 
to  produce  quiet  between  Catholic  and  Protestant  states,  the 
principle  is  adopted  of  having  an  equal  number  of  Catholic 
and  Protestant  assessors  in  the  courts  ;  and  where  the  states 
cannot  be  considered  as  one  body,  so  that  those  belonging  to 
the  two  religions  constitute  separate  parties,  the  majority  is 
not  to  decide,  but  the  two  factions  must  come  to  an  amicable 
arrangement  as  best  they  can  (Art  v.,  51,  52,  and  on- 
ward). 

By  these  measures  the  two  religions  were  equalized,  the 
emperor's  power  was  balanced  or  made  null  through  the 
opposition  of  the  members  of  the  diet,  the  members  of  the 
diet  were  left  free  to  make  treaties  with  whom  they  pleased, 
and  a  Protestant  head,  counteracting  the  Catholic  Austrian 
power,  was  rendered  possible.  The  empire  itself  and  the 
emperor  became  more  insignificant  than  before.    In  the  en- 


CONFEDERATIONS. 


197 


suing  history  we  find  estates  of  the  diet  taking  sides  against 
one  another  in  the  affairs  of  Europe,  and  great  wars  waged 
in  Germany  between  them  or  by  them  against  the  emperor. 
They  were  also  encouraged,  by  the  full  power  of  treating 
with  one  another  which  the  peace  gave  them,  to  check  each 
other's  political  designs  in  the  empire,  as  by  forming  leagues 
in  which  a  large  number  of  princes  were  united.  Such  was 
the  fiu'stcnbiind  planned  by  Frederick  the  Great  in  1785,  a 
little  before  his  death,  to  prevent  the  exchange  of  Bavaria  and 
the  Austrian  Netherlands  between  the  Emperor  Joseph  II. 
and  the  next  heir  to  the  Bavarian  dominions.* 

Germany,  broken  up  by  the  peace  of  Westphalia  more  than 
f  A-  it  was  before,  was  unable  to  withstand  the  power 

Conlcaeration  bro-  '  I 

ken  up  in  1806.  of  NapolcoH.  In  1 8o6  the  Confederation  of  the 
Rhine,  withdrawing  a  number  of  princes  in  south-western 
Germany  from  the  empire,  was  followed  by  the  emperor's  re- 
nunciation of  his  dignity,  and  the  breaking  up  of  the  empire 
itself.  The  princes  could  appeal,  as  they  went  out,  to  the 
failure  of  the  constitution  of  Germany  to  unite  the  different 
members  of  the  body,  and  to  the  separation  of  the  interests 
of  North  Germany  from  South,  by  the  peace  of  Basel  in  1795, 
between  Prussia  and  the  French  republic.  There  was  thus 
no  German  political  union  from  1806  until  June  8,  181 5, 
when  the  federal  act  was  concluded  by  the  plenipotentiaries 
of  the  princes  and  of  the  free  cities  then  remaining,  and  was 
Revived  1815.  The  incorporated  in  the  act  of  the  congress  of  Vicn- 
fedcrai .let.  This  transaction  constituted  "  a  confeder- 

ation in  perpetuity,  bearing  the  name  of  the  German  confed- 
eration "  (Deutsches  Bund).  Its  members  were  thirty-eight 
(afterwards  thirty- nine)  in  number,  and  its  organ  a  diet  in 
which  Austria  was  to  preside.  In  an  ordinary  assembly  there 
were  seventeen  votes,  so  arranged  that  eleven  principal 
powers,  including  Denmark  for  Ilolstein,  and  the  Nelhcrlands 
for  Luxemburg,  were  to  have  one  vote  each,  while  tiie  re- 
maining six  votes  were  given  to  groups  of  the  smaller  states 

*  Conip.  V.  Rankc,  die  Deutsche  Machte  u.  dcr  Fiirstenbund. 


198 


POLITICAL  SCIENCE. 


according  to  their  importance.  "When  fundamental  laws 
were  to  be  considered,  or  changes  made  in  the  fundamental 
laws  of  the  constitution,  or  measures  were  to  be  taken  regard- 
ing the  federal  act  itself,  or  organic  institutions  or  other 
arrangements  of  common  interest  to  be  adopted,"  the  diet 
was  to  form  a  plenum  or  general  assembly,  in  which  every 
member  had  at  least  one  vote  ;  the  six  greatest  powers  four 
apiece  (viz.;  Austria,  Prussia,  Saxony,  Bavaria  Hanover,  and 
Wiirtemburg)  ;  Baden,  each  of  the  Hessian  states,  Holstein, 
Luxemburg,  three  each  ;  Brunswick,  Mecklenburg-Schwerin, 
Nassau,  each  two.  The  question  in  which  of  these  assemblies 
a  matter  should  be  discussed,  was  to  be  decided  in  the  ordi- 
nary assembly  and  by  a  plurality  of  votes.  This  assembly 
was  to  have  for  its  office  the  preparation  of  projects  of  resolu- 
tions to  be  submitted  to  the  general  assembly,  and  its  deci- 
sions were  to  be  by  a  simple  majority  ;  while  in  the  general 
assembly  a  vote  of  two-thirds  was  necessary  to  reach  a  valid 
conclusion.  "  But  in  neither  assembly,  when  the  question 
related  to  the  acceptance  or  change  of  fundamental  laws  or  to 
organic  institutions,  or  to  individual  rights  or  affairs  of  religion, 
was  the  simple  plurality  to  be  sufficient.  The  diet  was  to  be 
permanent,  and  could  not  adjourn  for  more  than  four  months." 
All  the  members  of  the  confederation  engaged  to  defend  not 
only  Germany  as  a  whole,  but  also  each  federal  state  in  case 
of  attack,  and  mutually  guaranteed  all  their  possessions  com- 
prised within  the  union.  It  was  made  unconstitutional,  when 
a  "  federal  war"  was  declared,  for  any  member  to  negotiate, 
or  make  an  armistice  or  a  treaty  of  peace  with  the  enemy  on 
its  own  private  account  ;  and  while  the  right  of  forming  alli- 
ances of  every  kind  was  retained,  they  bound  themselves  to 
contract  no  engagement  directed  against  the  safety  of  the 
confederation  or  of  the  different  states  composing  it.  They 
engaged  also  to  make  war  on  one  another  under  no  pretext 
whatever,  but  to  submit  their  differences  to  the  diet  without 
resort  to  force.  A  plan  of  conciliation,  and  if  this  should  fail, 
the  prospect  of  a  court  of  arbitration  {aiistragnlitisiafic),  is 
held  out  as  a  thing  of  the  future  (Art.  xi.).    Other  articles 


CONFEDERATIONS. 


199 


relating  to  particular  points  need  not  detain  us,  except  the 
thirteenth,  which  is,  that  in  all  the  states  of  the  confederation 
there  shall  be  a  constitution  of  estates  {sidnde),  which  seems 
to  prevent  the  possibility  of  reforms  in  particular  states  in  the 
direction  of  equality  of  condition. 

The  federal  act  was  short  and  incomplete.  An  appendix 
to  it  under  the  name  of  "  a  final  act  of  the  con- 
ferences held  at  Vienna  to  develop  and  consol- 
idate the  organization  of  the  German  confederation,"  after 
being  discussed  by  representatives  at  Vienna  in  1819  and  1820, 
was  accepted  by  a  plenum  in  a  diet  held  at  Frankfort  in  1820, 
as  a  fundamental  law,  of  equal  validity  with  the  constitution 
itself.  This  had  been  preceded  by  a  congress  of  nine  states, 
held  at  Carlsbad  in  18 19,  where  sundry  defects  of  the  constitu- 
tion had  been  complained  of.  A  part  of  the  articles  of  this 
schlussact  are  taken  up  with  defining  the  relations  of  the 
states,  somewhat  in  a  scholastic  way.  "  As  to  its  interior 
relations,"  such  are  the  words  of  Art.  ii.,  "  this  confederation 
forms  a  body  of  states  independent  of  one  another,  but  bound 
by  rights  and  duties  freely  stipulated.  As  to  its  external  re- 
lations, it  constitutes  a  collective  power,  established  on  the 
principle  of  political  unity."  "The  constitution  is,  by  its 
very  principle,  indissoluble  ;  hence,  no  one  of  its  members  has 
the  liberty  to  withdraw  from  it"  (Art.  v.).  New  members 
can  be  admitted  only  by  a  unanimous  vote.  (From  Art.  vi.) 
"  The  plenipotentiaries  sent  to  the  diet  are  individually  respon- 
sible to  their  sovereigns  (Art.  viii.).  The  general  council 
or  plenum  is  only  convened  in  the  cases  mentioned  in  the 
constitution,  and  also  for  the  declaration  of  war,  the  ratifica- 
tion of  peace,  and  the  admission  of  new  members  into  the 
union.  When  it  is  doubtful  whether  the  business  is  of  such 
a  nature  as  properly  to  come  before  the  plenum,  the  ordinary 
council  must  decide  the  point  (Art  xii.).  Unanimity  is  nec- 
essary in  the  plenum  when  the  vote  relates  to  organic  institu- 
tions, and  if  the  decision  is  favorable  the  deliberations  on  de- 
tails are  to  be  held  in  the  ordinary  council  (  Art.  xiv.).  Other 
articles  provide  for  the  maintenance  of  peace  within  the  con- 


200 


POLITICAL  SCIENCE. 


federate  states,  and  the  settlement  of  disputes  by  a  commission 
of  conciliation  or  by  a  court  of  arbitration,  for  the  aid  to  be  fur- 
nished, and  the  way  in  which  it  is  to  be  furnished  to  govern- 
ments for  the  maintenance  of  internal  order.  Measures  for  the 
execution  of  the  laws  and  resolutions  of  the  diet  are  to  be  taken 
in  the  name  of  the  entire  confederation  ;  and  for  this  purpose 
one  or  two  governments  not  interested  in  the  affair  shall  be 
delegated  to  do  what  is  necessary,  the  diet  determining  the 
number  of  troops  and  the  length  of  time  for  which  they  are 
to  be  employed  (Art.  xxxiv.).  The  confederation  possesses 
the  rights  of  making  war  and  peace,  and  of  negotiation  in  gen- 
eral." Yet,  in  accordance  with  the  object  for  which  it  is  found- 
ed, it  makes  use  of  these  rights  only  for  its  own  defence,  for  the 
maintenance  of  German  independence,  and  of  safety  from  with- 
out, as  well  as  of  the  independence  and  inviolability  of  each 
of  the  confederate  states  (xxxvi.).  A  number  of  articles  re- 
late to  measures  for  defence,  to  legal  contingents  of  the  sev- 
eral states,  to  their  right  to  do  more  than  is  thus  required  of 
them,  if  circumstances  require  it.  If  a  member  is  at  war  for 
possessions  outside  of  the  territory,  the  confederation  remains 
a  stranger  to  its  movements  (xlvi.).  When  the  confedera- 
tion is  engaged  in  a  foreign  war,  no  state  can  make  a  treaty 
with  the  foreign  belligerent  (xlviii.).  The  diet  has  power 
to  determine  the  amount  of  expenses — ordinary  as  well  as  ex- 
traordinary, to  apportion  these  expenses  to  the  several  states, 
and  to  regulate  and  supervise  the  collections  (lii.).  Existing 
constitutions  cannot  be  changed  except  in  the  constitutional 
way  (Ivi.).  The  diet  is  authorized  to  guarantee  a  constitution 
at  the  request  of  a  member  of  the  confederation. 

It  will  be  evident,  from  a  consideration  of  these  articles, 
that  this  instrument  did  not  go  much  further  in  the  direction 
of  a  close  union  than  the  German  nation  had  gone  before. 
The  diet  made  no  political  treaty  with  foreign  powers  ;  it 
scarcely  contemplated  the  possibility  of  a  war  between  the 
states  of  the  union  ;  it  did  not  supersede  the  relations  of  the 
separate  states  to  foreign  jjowcrs  ;  it  had  no  army  aside  from 
the  contingents  of  the  states,  had  a  limited  range  of  powers, 


CONFEDERATIONS. 


20I 


and  an  awkward  way  of  enforcing  them.  Its  courts  of  arbi- 
tration were  never  fully  set  up.  In  short,  aside  from  the  gov- 
ernments composing  it,  it  was  not  an  organization  with  self- 
defensive  and  self-perpetuating  powers. 

Tendencies  towards  union  in  Germany  are  seen  in  the  cus- 
Constitution  of  toms-unions  which  grew  up  chiefly  outside  of 
the  diet.  It  seems  also  that  Prussia  was  desir- 
ous of  a  closer  union  than  had  been  effected.  Meanwhile, 
democratic  opinions  grew  up  in  Germany,  the  revolutionary 
spirit  of  1848  spread  through  the  states,  movements  for  poli- 
tical changes  were  set  on  foot  outside  of  its  meetings  which 
it  was  too  weak  to  oppose  ;  and  a  "  voyparleincnt"  (March, 
1848)  and  a  parliament  (May,  1848)  having  been  convened,  a 
new  constitution  was  framed  in  1849.  The  idea  in  this  in- 
strument was  that  of  a  bundcsstaat  with  a  legislative  assembly 
of  two  houses,  the  lower  house  to  be  elected  by  direct  votes, 
and  a  population  of  70,000  to  return  one  member.  A 
chief  of  the  empire  was  to  have  international  relations  in  his 
hands  and  a  suspensive  veto,  which  three  successive  resolu- 
tions of  the  rcichstag  or  diet  could  overthrow.  The  question 
of  a  chief  produced  division,  and  it  appeared  that  some  po- 
litical men  of  high  character  wanted  to  have  a  federal  union 
-with  no  Austria  in  it.  The  king  of  Prussia  was  elected 
emperor,  but  declined  the  dignity.  After  long  tinkering  and 
attempts  to  put  this  constitution  in  a  more  perfect  shape  upon 
its  legs,  things  went  back  to  the  old  diet  in  185  i.""'' 

Meanwhile  the  difficulties  had  occurred  between  Denmark 
DifTicuitics  with  Schleswig-Holstein,  the  latter  of  which  two 

Denmark.  duchics,  being  German,  furnished  Germany  with 

a  right  of  interference,  and  a  military  execution  was  put  in 
the  hands  of  Austria  and  Prussia.  In  1864  the  king  of  Den- 
mark by  treaty  renounced  his  rights  over  these  ducliii-s  anil 
Lauenburg,  in  favor  of  the  Austrian  and  Prussian  soxcrrigns 
— a  strange  affair  with  which  the  confederacy  had  nothing  to 

*  A  succinct  account  is  t^ivon  of  liiis  I)y  A.  Nicolson,  a  secretary 
in  the  IJiitish  embassy  at  I5crliii,  in  his  Sketch  of  the  Germanic  Con- 
stitution. (Lond.  1875.) 


202 


POLITICAL  SCIENCE. 


do.  By  the  treaty  of  Gastein  of  1865,  Schlcswig  was  to  be 
controlled  by  Prussia,  Holstein  by  Austria,  and  Lauenburg 
was  to  go  to  the  Prussian  crown  on  the  payment  of  a  price. 
These  arrangements  disturbed  and  displeased  many  German 
powers,  and  difficulties  arose  between  the  two  powers  them- 
selves. Prussian  troops  entered  Holstein  ;  the  diet  voted  to 
mobilize  the  federal  army  ;  the  Prussian  representative  at  the 
diet  declared  that  the  constitution  of  the  confederation  was 
dissolved,  and  Prussia  declared  that  she  withdrew  from  the 
confederation,  demanding  at  the  same  time  a  plan  of  reform, 
which  was  in  reality  a  division  of  Germany.  It  was  plain 
that  war  was  inevitable.  Prussia  had  prepared  for  it,  and 
the  question  was  whether  Austria  should  be  predominant  or 
be  driven  out  of  the  union.  The  wonderful  successes  of 
Prussia  and  the  peace  of  Prague,  following  the  convention  of 
Kikolsburg,  all  in  1866,  separated  Austria  from  the  Germanic 
body,  led  to  the  incorporation  of  Schleswig-Holstein,  Han- 
over, electoral  Hesse,  Nassau  and  Frankfort  in  the  Prussian 
kingdom,  and  to  the  formation  of  the  North-German  con- 
federacy.   The  South-German  states  formed  no  union. 

This  new  confederation  went  into  operation  under  its  con- 
North-German  stitution  in  1867,  and  was  to  a  considerable  ex- 
confederation,  .867.  ^^^^  ^  carrying  out  of  the  ideas  of  the  Frank- 
fort constitution  of  1849.  The  presidency  belonged  to  the 
crown  of  Prussia,  with  the  right,  in  this  character,  of  repre- 
senting the  union  in  international  affairs,  of  declaring  war, 
making  treaties  of  peace,  of  alliance  and  other  conventions, 
of  accrediting  and  receiving  diplomatic  envoys,  of  nominating 
consuls,  and  of  commanding  the  confederate  army  and  navy. 
To  this  head  of  the  body  belonged  also  the  right  to  convoke, 
open,  prorogue  and  close  the  federal  council,  which  was  to 
have  an  annual  meeting,  and,  whenever  a  third  of  the  votes 
should  demand,  an  extra  session.  The  federal  chancellor, 
named  by  the  prcesidcnt  or  presiding  power  or  by  his  sub- 
stitute, presided  over  the  council.  To  the  pnesidcnt  per- 
tained the  promulgation  and  execution  of  the  laws.  The 
states  of  the  confederation  which  did  not  fulfil  their  duties 


CONFEDERATIONS. 


203 


could  be  constrained  in  the  way  of  a  military  execution,  to  be 
carried  out  by  the  federal  military  chief  (/.  e.,  the  king  of 
Prussia),  and  could  go  to  the  length  of  suspending  or  seques- 
trating the  state  in  question  and  its  powers  of  government. 

The  federal  council  {bicndcsrath)  was  to  consist  of  forty- 
three  deputies,  divided  among  the  states  of  the  confederation 
according  to  the  ratio  observed  in  the  plenums  of  the  former 
union  :  Prussia,  with  the  states  now  incorporated  into  it,  having 
seventeen  votes.  Saxony  four,  Brunswick  and  ]\Iecklenburg- 
Schwerin  two  each,  the  rest  one  each.  Every  member  cast 
its  votes  as  a  unity,  and  votes  not  represented  or  instructed 
did  not  count.  A  majority  was  to  decide,  the  president  hav- 
ing the  casting  vote.  In  the  standing  committees,  of  which 
there  were  nine,  two  states  besides  the  presiding  one  (^Prussia) 
were  to  be  represented,  but  each  state  had  only  one  vote. 

The  reicJistag  or  parliament  was  chosen  by  direct  and  uni- 
versal suffrage,  one  member  being  returned  for  every  one 
hundred  thousand  inhabitants,  until  an  electoral  law  could  be 
passed.  It  was  to  continue  for  three  years,  unless  dissolved 
by  the  federal  council,  with  the  concurrence  of  the  prtesidcnt  ; 
could  not  be  prorogued  for  more  than  thirty  days,  nor  more 
than  once  without  its  own  consent ;  it  judged  on  the  legality 
of  the  elections  of  its  members,  made  its  own  rules  of  order 
and  discipline,  and  decided  by  a  simple  majority,  provided 
a  legal  quorum  were  present.  The  members  were  irrespon- 
sible for  their  votes  and  speeches,  and  could  not  be  arrested 
for  a  penal  offence  without  the  consent  of  the  body,  unless 
in  flagrante  delictu,  or  the  day  after  the  act.  They  were  to 
serve  without  salary.  On  the  dissolution  of  a  diet,  a  new  one 
was  required  to  be  chosen,  and  to  meet  within  a  short,  definite 
term. 

The  competence  of  the  diet,  or  reichstag,  extended,  with 
the  concurrence  of  the  federal  council,  to  all  matters  not  in- 
ternational nor  political  and  reserved  for  the  head  of  the  union, 
which  pertained  to  the  common  welfare,  as  customs  and  im- 
posts for  federal  objects,  weights,  measures,  coins,  paper 
money,  banks,  patent  and  copy  rights,  commerce  with  non- 


204 


POLITICAL  SCIENCE. 


German  nations,  navigation,  payment  of  consular  representa- 
tives, roads,  navigable  routes  for  defence  or  other  general  in- 
terests, navigation  of  public  rivers  and  duties  collected  on 
them,  posts  and  telegraphs,  arrangements  touching  reciprocal 
execution  of  judgments  between  the  states,  legislation  on 
contracts,  penal  and  commercial  law,  bills  of  exchange  and 
civil  procedure  (where  citizens  of  more  than  one  state  were 
concerned),  the  military  and  naval  organization  of  the  confed- 
eracy, medicinal  and  veterinary  police. 

Important  articles  relate  to  other  subjects,  such  as  federal 
finances,  offences  against  the  confederation,  change  of  consti- 
tution, and  relations  with  Southern  Germany.  The  effective 
peace-force  of  the  body  is  fixed  until  1871  at  one  per  cent,  of 
the  population  as  it  existed  in  1867,  and  each  state  is  required 
to  raise  two  hundred  and  twenty-five  thalers  for  every  one  of 
its  soldiers  in  the  federal  army.  This  is  under  the  command 
of  the  king  of  Prussia  as  "  federal  chief  of  war."  Chan^jes  in 
the  constitution  cannot  be  made  without  a  majority  of  two- 
thirds  of  the  votes  represented  in  the  federal  council. 

Under  this  constitution  the  North-German  states  entered 
(lerman  empire  of  1"^°  ^hc  War  with  Fraucc,  and  were  joined  in  it 
by  the  Southern  States  still  having  no  political 
union.  At  Versailles,  representatives  of  the  latter  appeared 
to  negotiate  for  admission  into  the  northern  confederation. 
The  treaties  of  admission  were  laid  before  the  diet  in  Novem- 
ber, 1870,  and  were  accepted  in  the  constitutional  way.  To 
Bavaria  several  concessions  were  granted.  It  was  part  of  the 
plan  that  the  king  of  Prussia  should  receive  the  title  of  em- 
peror, which,  being  offered  to  him  and  accepted  Jan.  8,  1871, 
on  the  territory  of  France,  a  constitution  for  the  German  em- 
pire came  into  force  April  16,  1 871. 

This  constitution  differs  so  little  from  the  North-German  of 
which  we  have  just  spoken,  that  a  very  short  account  of  it  is 
all  that  is  needed.  The  presidency  belongs  still  to  the  king 
of  Prussia,  who  wears  the  title  of  German  emperor  (Deutscher 
Kaiser).  The  relation  of  the  parties  is  that  of  a  confederation 
{bund),  yet  the  bund  has  the  name  of  the  German  kingdom 


CONFEDERATIONS. 


205 


{Deiitsches  Reich).  For  the  declaration  of  war  in  the  name 
of  the  kingdom,  and  for  treaties  with  foreign  states  which  in- 
volve matters  belonging  to  the  legislation  of  the  kingdom,  the 
consent  of  the  federal  council  [binidesratJi)  is  necessary.  The 
parliament  {reichstag)  is  still  chosen  by  universal  direct  suf- 
frages and  by  secret  ballots.  The  number  of  votes  in  the 
federal  council  are  increased  to  fifty-eight,  Bavaria  having  six, 
Wiirtemburg  four,  Baden  three,  Hesse  three.  The  number  of 
members  of  the  reichsiag  dX  the  first,  and  until  a  change  should 
be  made  by  law,  were  to  be  three  hundred  and  eighty  two,  of 
which  forty-eight  belonged  to  Bavaria,  seventeen  to  Wiirtem- 
burg, fourteen  to  Baden,  six  to  Hesse  south  of  the  Main. 
The  two  legislative  bodies  must  meet  annually,  and  the  coun- 
cil must  meet  at  other  times  when  this  is  demanded  by  the 
votes  of  two-thirds  of  the  members  ;  but  the  parliament  or 
reichstag  can  never  meet  without  the  council.  The  proposi- 
tions made  according  to  resolutions  of  the  federal  council  arc 
presented  to  the  reichstag  in  the  name  of  the  emperor,  and 
are  there  supported  or  represented  by  members  of  that  body, 
or  by  commissaries  nominated  for  that  purpose.  The  reichs- 
tag's  term  of  service  is  three  years,  and  a  dissolution  at  an 
earlier  time  can  take  place  only  by  resolution  of  the  federal 
council  and  consent  of  the  emperor.  If  it  be  dissolved,  a  new 
election  must  be  held  within  sixty  days,  and  a  new  house 
must  assemble  within  ninety  ;  nor  can  this  branch  of  the  le- 
gislature be  adjourned  more  than  thirty  days  without  its  con- 
sent, nor  an  adjournment  be  repeated.  The  reichstag  ]\.\d<:^c'~, 
on  the  validity  of  its  members,  makes  its  own  rules  of  order, 
chooses  its  president,  vice-president,  and  secretary,  carries  a 
question  "  by  absolute  majority  of  votes,"  and  has  a  quorum 
when  a  majority  of  the  legal  members  are  present.  Its  sittings 
are  public,  and  reports  of  its  proceedings,  intended  to  be 
true  (wahrhcitstrcue)  are  irresponsible.  The  members  of  the 
body  are  representatives  of  the  collective  people,  and  bound 
by  no  commissions  or  instructions.  They  arc  free  from  ex- 
amination and  arrest  on  criminal  charge  or  for  debt  during  the 
period  of  session.     The  subject-matters  of  legislation  are 


2o6 


POLITICAL  SCIENCE. 


nearly  the  same  as  in  the  North-German  confederation.  The 
mihtary  service  rests  on  every  German,  and  cannot  be  dis- 
charged by  deputy.  The  ratio  of  costs  and  troops  is  to  be 
made  equal  among  the  states  in  the  confederation  ;  at  present 
the  Prussian  system  is  to  be  followed  in  most  respects.  The 
emperor  is  head  of  the  army,  all  the  officers  take  the  oath  to 
him  ;  superior  officers  of  contingents,  and  commanders  of 
fortresses  are  appointed  by  him  ;  generals,  and  officers  taking 
the  place  of  generals,  need  his  approval  ;  but  in  other  cases 
the  states,  i.  c,  their  princes  or  senates,  appoint  the  officers 
of  their  contingent.  The  budget  is  annual  and  fixed  by  law, 
yet  the  supplies  can,  in  particular  cases,  be  granted  for  a 
longer  period.  In  cases  of  extraordinary  need,  a  loan  or  a 
guaranty  can  be  authorized  by  law.  Attacks  made  on  the 
existence,  integrity,  safety,  or  constitution  of  the  German 
kingdom,  as  well  as  injuries  and  insults  to  the  legislative  bodies 
or  to  members  of  them,  or  to  other  constitutional  organs  in 
the  exercise  of  their  duties,  are  made  punishable  in  each 
state  just  as  similar  acts  are  punished  which  are  committed 
against  the  state  or  its  officers.  Controversies  between  dif- 
ferent states  of  the  confederation  can  be  referred,  on  request 
of  one  of  the  parties,  to  the  federal  council  for  adjustment,  pro- 
vided they  are  not  of  a  private  nature,  and  are  thus  capable  of 
being  settled  by  the  competent  tribunals.  Constitutional 
questions,  within  those  of  the  states  which  have  not  furnished 
themselves  with  courts  for  the  decision  of  such  cases,  may  be 
settled  at  the  request  of  one  of  the  parties  in  an  amicable  way 
by  the  federal  council,  or,  if  this  cannot  be  brought  to  a  suc- 
cessful issue,  by  a  general  law. 

These  two  constitutions  are  a  great  step  forward  towards  a 
firm  and  close  confederation.  Yet  the  dangers  and  defects 
in  them  both,  in  that  of  the  empire,  however,  to  a  less  degree 
than  in  that  of  the  North-German  confederation,  are  apparent. 
The  principal  are  these  :  First,  the  predominance  of  Prussia, 
which,  in  the  first  of  the  two  constitutions,  by  its  seventeen 
votes  in  the  bniidesrath ,  with  its  influence  over  smaller  north- 
ern principalities,  could  easily  carry  every  measure  which  it 


CONFEDERATIONS. 


207 


pleased.  This  would  necessarily  cause  discontent  and  bitter- 
ness, and  would  lead  either  to  resistance  and  a  breaking  up 
of  the  confederation,  or  to  a  consolidated  empire.  It  is  the 
old  part  acted  by  a  large  city-state  like  Thebes  with  the  hege- 
mony in  its  hands,  or  by  Athens  as  ally  and  then  mistress  of 
the  maritime  states.  The  formation  of  the  empire  somewhat 
diminishes  this  danger.  Bavaria,  with  the  other  South-Ger- 
man states  and  Saxony,  have  the  same  number  of  votes  in 
the  federal  council  as  Prussia,  and  although  it  must  ever  take 
the  lead,  the  opposition  must  be  greater,  and  the  fear  of  suc- 
cessful disruption  must  act  as  a  motive.  Consolidation  now 
seems  far  less  feasible.  Secondly,  the  provisions  for  collect- 
ing an  army  and  for  raising  money  by  taxation  are  not  those 
of  a  bundcsstaat,  and  at  times  the  non-fulfilment  of  their 
duties  by  the  states  must  create  very  serious  difficulties. 
Again,  it  seems  a  serious  defect  that  there  is  no  supreme 
interpretation  lodged  in  some  tribunal,  having  its  branches 
all  over  the  "  Reich,''  and  empowered  to  hear  and  decide  in 
all  cases  where  the  central  power  as  such  is  a  party.  But  it 
may  be  said  that  if  such  a  court  had  been  a  part  of  the  con- 
stitution, it  would  have  been  a  creature  of  the  emperor.  This 
may  be  true,  and  this  shows  the  difficulty  of  uniting  a  heredi- 
tary imperial  power,  lodged  in  the  hands  of  the  head  of  a 
great  kingdom,  with  a  real  federal  system.  There  can  be  no 
change.  The  Prussian  policy  must  go  on  for  all  time  until 
a  break  comes  ;  and  the  more  peaceful  Europe  grows,  the 
harder  it  will  be  to  keep  together.  As  we  have  before  re- 
marked, all  difficulties  are  intensified  by  the  fact  that  this  is 
not  a  union  of  states  so  much  as  of  sovereigns.  If  it  were 
otherwise,  the  policy  (of  Prussia,  for  instance)  might  change 
with  a  change  of  parties  ;  but  the  sovereign's  will  is  more 
under  the  control  of  personal  and  family  ideas,  than  parties 
are  under  the  control  of  party  principles.  We  have,  then,  a 
kingdom  governing  the  union  of  states,  which  is  called  the 
"  rcich,"  stronger  than  tiial  of  Charlemagne  or  Charles  V., 
or  than  any  Austrian  empire  ;  and  this  kingdom,  while  it  is  the 
strength  of  Germany  against  foreign  attacks,  must  be  the 


2o8 


POLITICAL  SCIENCE. 


controlling  force  within.  If  one  of  the  United  States  were 
larger  than  ten  others  in  its  neighborhood,  and  was  repre- 
sented according  to  the  same  ratio  in  the  senate,  it  would 
form  a  dangerous  element  in  our  constitution,  although  our 
state  officers  change  continually,  and  the  states  have  no 
armies,  and  have,  to  a  great  extent,  one  common  character 
and  common  interests. 


210. 

Swiss  Confederations. 

Switzerland  offers  another  example  of  an  experiment  in 
Rise  and  growth  ^^e  Way  of  Confederation,  beginning  with  a  loose 
of  Swiss  league.  leaguc  or  uniou,  and  ending  in  a  well-compacted 
republic.  The  league  first  arose  in  the  wood  cantons,  Uri, 
Schwytz,  and  Unterwalden,  which  acquired,  after  the  battle 
of  Morgarten  (13 15),  in  a  peace  or  truce  several  times  renewed 
with  the  duke  of  Austria,  a  condition  of  quahfied  indepen- 
dence. The  emperor  Louis  of  Bavaria  (1324),  confirmed 
their  liberties  as  against  the  house  of  Hapsburg  ;  and  in 
the  course  of  a  few  years  several  other  places  came  into  the 
confederacy,  Luzerne  in  1332,  the  town  of  Zurich  in  1351, 
Glarus  and  Zug  soon  afterwards,  and  the  imperial  city  of  Bern 
in  1353.  Some  of  these  territories,  however,  held  an  equivo- 
cal position  towards  their  former  sovereign,  which  gave 
occasion  to  violent  contests.  In  1370  the  "  pfaffenbrief," 
or  decree  relating  to  the  priests,  provided  that  all  persons 
living  within  the  bounds  of  the  confederation,  even  those  who 
were  bound  by  oath  to  the  duke  of  Austria,  should  take  an 
oath  to  the  confederacy  also  ;  and  that  no  one  should  be 
brought  before  a  sovereign's  court,  except  in  matters  belong- 
ing to  a  bishop's  jurisdiction,  but  only  before  the  tribunal 
in  the  district  where  he  resided  (1370).  A  few  years  later 
(1386)  occurred  the  glorious  battle  of  Scmpach,  which  the 
league  of  the  Suabian  towns  left  the  confederates  to  fight 
alone,  and  in  which  these  peasants  slew  the  duke  of  Austria, 


CONFEDERATIONS. 


2C9 


and  a  large  part  of  his  nobles.  After  another  defeat  (1389) 
at  Nilfels,  the  league  was  acknowledged  by  the  former  sover- 
eign house,  which  renounced  all  earlier  jurisdiction,  retaining 
only  their  hereditary  and  certain  other  revenues.  Appenzell 
came  into  the  union  in  141 1,  and  a  fifty  years'  peace  was 
made  with  the  duke  of  Austria  in  1412  ;  notwithstanding 
which,  when  the  duke  was  placed  under  the  ban  for  his  assist- 
ance rendered  to  Pope  John  XXIII.  during  the  council  of 
Constance,  the  confederates  joined  in  the  war  against  him, 
on  the  emperor's  promise  that  they  should  hold  all  the  terri- 
tory they  could  wrest  from  him  (141 5).  The  looseness  of 
the  federal  principle  appears  on  many  occasions  :  an  early 
one  was  the  civil  war  between  Zurich  and  Schwyt^;,  in  refer- 
ence to  the  county  of  Toggenburg,  after  the  line  of  counts 
ran  out  in  1436.  Both  sought,  by  various  means,  to  unite 
and  incorporate  this  territory  with  their  own,  and  Zurich  did 
not  scruple  to  make  an  alliance  with  Austria  for  this  purpose  ; 
but  the  confederates  were  against  her,  and  she  was  compelled 
to  submit  to  terms. 

In  the  fifteenth  century  the  confederacy  was  enlarged  by  al- 
liances with  Freiburg,  Solothurn  (Soleure),  Basel,  and  Schaff- 
hausen  (i  501)  ;  and  in  the  latter  third  of  the  century,  the  Swiss 
becoming  involved,  through  the  arts  of  Louis  XI.  of  France, 
in  wars  with  Charles  the  Bold  of  Burgundy,  became  re- 
nowned through  Europe  for  their  victories  over  his  troops  at 
Granson  (1476),  at  Murten  (Morat)  nearly  three  months  after- 
ward, and  at  Nancy  (1477),  where  the  duke  met  his  death. 
From  this  time  they  came  into  the  practice  of  helping  in  the 
various  wars  of  France,  and  of  the  emperor,  especially  in  Italy, 
and  treaties  were  made  by  separate  cantons  for  this  purpose. 
The  early  spread  of  the  Protestant  reformation  divided  the 
Swiss,  led  to  civil  wars — such  as  that  in  which  Zwingli  lost  his 
life  (1531)  at  Cappcl,  that  of  1656,  terminated  by  the  peace 
of  Baden,  and  to  the  war  between  Bern  and  Zurich  on  the 
one  part  and  five  Catholic  cantons  on  the  other  (171 2),  in 
which  the  latter  were  obliged,  as  the  price  of  peace,  to  give 
up  their  part  of  the  sovereignty  over  the  county  of  Baden 
VOL.  II.  — 14 


210 


POLITICAL  SCIENCE. 


and  some  other  districts.  The  defeated  cantons,  by  an  aUi- 
ance  with  France,  secured  themselves  against  future  attacks 
from  their  confederates.  There  was  indeed  no  central  gov- 
ernment. The  diets  (or  tagsatzungen)  met  only  to  attend  to 
the  affairs  of  territories  held  in  common  possession.  Instead 
of  one  diet,  two  sat — a  Protestant  at  Aarau,  a  Catholic  at 
Luzerne.  The  only  diets  called  general  were  those  convoked 
to  listen  to  propositions  from  foreign  ambassadors  which  con- 
cerned more  than  one  canton.  In  these  cases  the  ambassa- 
dors were  expected  to  pay  the  expenses  of  the  delegates, 
and  the  delegates  from  the  two  religions  sat  apart,  each  party 
negotiating  for  itself.  Nor  were  there  any  common  repre- 
sentatives sent  abroad,  but  each  canton  managed  its  external 
affairs  through  its  own  agent.  In  the  interior  of  the  cantons 
the  same  want  of  unity  was  manifest.*  That  of  Bern  was 
governed  by  a  town  aristocracy  ;  another  was  divided  into 
parts,  one  of  which  governed  the  others  ;  and  large  depend- 
encies of  the  confederacy  had  no  sovereignty  whatever,  but 
were  controlled  in  the  way  mentioned  above,  by  administrative 
commissioners.  No  confederation  that  did  not  soon  dissolve 
has  been  more  shackling.  That  the  Swiss  union  did  not  dis- 
solve was  owing,  not  to  political  causes  pertaining  to  the 
league  itself,  but  to  the  ancient  bravery  of  the  inhabitants, 
to  the  difficulty  of  operations  of  war  in  such  a  country,  to 
the  unwillingness  of  the  great  powers  that  any  one  of  their 
number  should  control  it,  to  its  poverty  and  neutral  posi- 
tion like  that  of  an  island  of  mountains,  on  both  sides  of 
which  entrances  into  Italy  were  held  by  more  powerful 
States. 

Switzerland  was  to  some  extent  affected  by  the  principles, 
Switzerland  in  the       ^^'^'^  '^^  iuvolved  in  thc  comuiotions  attending 
French  revolution,    ^j^g  Fi  cuch  revolutioH.    The  southem  Italian- 
speaking  dependencies  of  the  Swiss  union  were  in  part  in- 
corporated in  the  Cisalpine  republic,  and  Basel  was  deprived 


*  Comp.  Passy,  les  formes  de  gouvernement,  344  and  onward,  to 
whom  we  owe  some  of  the  expressions  iicre  used. 


CONFEDERATIONS. 


211 


of  part  of  its  territory  on  the  plea  of  rectifying  boundaries. 
Quarrels  arose  as  they  have  done  since  between  Basel-town 
and  Basel-country.  A  difficulty  between  Bern  and  the  pays 
de  Vaud  (Lausanne)  gave  a  pretext  for  interference  to  the 
French  republicans,  on  the  ground  of  an  old  treaty  by  which 
the  crown  of  France  had  this  mediating  position.  In  the 
end  the  pays  de  Vaud  declared  its  independence  ;  Luzern, 
Schaffhausen,  Zurich  altered  their  forms  of  government, 
making  concessions  to  the  dependent  people  in  the  country. 
Several  towns  were  occupied  by  French  troops,  the  Swiss 
confederacy  was  pronounced  to  be  dissolved,  a  Helvetic  re- 
public was  manufactured  (1798),  popular  sovereignty  was 
introduced  under  a  common  government,  and  new  divisions 
of  the  territory  into  eighteen  cantons  were  made,  without 
entire  regard  to  former  cantonal  boundaries.  To  all  this 
flood  of  changes  the  old  cantons,  where  Swiss  independence 
was  born,  offered  a  heroic  but  vain  resistance. 

There  was  no  want  of  constitution-making  at  this  period, 
and  as  little  possibility  of  keeping  a  constitution  once  formed 
from  speedy  death.  First  appears  a  project  of  a  constitution 
of  March,  1798,  which  served  with  modifications  as  the 
groundwork  of  another  sketched  in  April  of  the  same  year. 
This  latter  was  prevented,  by  the  outbreak  of  war  between 
France  and  Austria  in  1799,  from  taking  root.  It  was  sug- 
gested by  the  French  in  August,  1798,  that  the  Grisons  should 
be  invited  to  form  an  independent  canton.  Another  consti- 
tution of  May  29,  1 801,  approved  of  by  Bonaparte,  then  first 
consul,  was  acceptable  to  few  in  its  political  and  territorial 
arrangements  It  comprised  the  Grisons,  united  Thurgau 
with  Schaffhausen,  and  made  many  other  changes.  Other 
constitutions  succeeded,  in  Oct.,  1801,  Feb.,  1802,  and  July, 
1802,  which  had  no  vitality.  At  this  time  I-'rcnch  troops 
were  quartered  in  the  country.  On  their  withdrawal  anarchy 
and  civil  strife  arose,  the  smaller  cantons  wishing  to  go  back 
to  the  arrangements  of  1798,  while  Zurich  and  Bern  were  in 
a  condition  of  armed  confiict.  The  government  was  driven 
to  Lausanne  from  Bern  by  armed  insurgents  from  Aargau. 


212 


POLITICAL  SCIENCE. 


An  assembly  was  called  to  meet  at  Schwytz  to  project  a  new 
constitution.  Amid  the  discord,  at  French  suggestion,  a 
deputation  of  thirty-six  favoring  the  new,  and  fifteen  favoring 
the  old,  system  of  things  went  to  Paris,  and  it  was  announced 
from  the  first  consul  that  a  new  constitution  must  be  based 
on  the  following  principles  :  equality  of  cantonal  rights  ; 
honest  renunciation  by  the  patricians  of  their  former  privi- 
leges ;  and  that  every  canton  must  organize  itself  according 
to  its  own  language,  religion,  usages,  and  interests.  After 
long  consultation  between  French  commissioners  and  the  Hel- 
vetian deputies,  the  constitutions  of  nineteen  cantons  and 
the  federal  act  were  united  in  a  draft  called  an  act  of  mediation, 
and  handed  over,  in  an  audience,  by  the  consul  to  the  depu- 
ties, with  distinct  statements,  that  if  this  plan  should  not 
succeed,  nothing  else  r-emained  but  to  compel  its  reception, 
by  force  of  arms  or  to  unite  the  country  to  France.  The  in- 
strument went  into  operation  and  continued  until  Dec.  29, 
1 81 3,  when  Napoleon  had  returned  to  Paris  and  Schwarz- 
enberg's  army  had  marched  on  France  through  Switzerland. 
At  this  time  ambassadors  from  most  of  the  older  cantons, 
in  a  meeting  at  Zurich,  declared  that  the  federal  constitution, 
as  contained  in  the  act  of  mediation,  could  continue  no  longer, 
and  that  the  old  union  must  be  preserved.  They  unite  in 
pronouncing  that  no  relations  of  dependency  inconsistent  with 
the  rights  of  a  free  people  shall  be  re-established,  and  that  the 
old  vorort  of  the  confederacy  (the  place  having  the  lead  in 
public  affairs),  Zurich,  should  be  asked  to  tiike  the  lead 
until  a  more  settled  order  of  things  could  be  established. 
Thus,  what  may  be  called  the  French  readjustments  of  Switz- 
erland came  to  an  end.  The  constitutions,  however,  as  they 
were  modified  in  the  Mediation  Act,  were  not  extreme  in  any 
respect,  but  rather  expressions  of  the  public  will  as  it  then 
was.  Everywhere  mature  age  or  the  possession  of  from  two 
hundred  to  five  hundred  "  Swiss  francs  "  was  a  necessary 
qualification  for  suffrage.  The  old  wood-cantons  adhered  to 
the  Catholic  religion.  Not  even  were  the  governments  by 
guilds  in  Bern  and  Basel  overthrown. 


CONFEDERATIONS, 


213 


The  congress  of  Vienna  made  a  declaration  in  181 5  (March 
Nc:w  consmution  20),  rcspccting  thc  affairs  of  Switzerland,  one 
part  of  which  was  thc  introduction  of  Geneva, 
Neufchatel  (a  Prussian  principality  at  that  time),  and  Valais 
(Wallis),  into  the  confederation,  and  this  received  the  consent 
of  the  confederates.  The  neutralization  of  Switzerland  with 
part  of  Savoy,  followed  as  an  act  of  the  same  powers.  (Nov. 
20,  181 5.)  The  federal  compact  between  the  sovereign  can- 
tons of  Switzerland,  now  twenty-two  in  number,  had  been 
concluded  on  the  l6th  of  Aug. ,  1815.  This  is  a  reactionary 
instrument.  It  fixes  the  rate  of  troops  and  taxes  for  federal 
purposes,  gives  every  canton  the  right  to  demand  defense 
against  internal  and  external  force,  provides  for  the  settle- 
ment of  disputes  between  the  cantons,  prohibits  them  from 
making  treaties  which  are  to  the  prejudice  of  other  cantons 
or  of  the  league,  puts  an  end  to  all  dependent  territory,  and 
exclusive  possession  of  rights  by  a  class  of  citizens,  continues 
the  old  plan  of  having  a  vorort,  and  a  tagsatzung  or  diet,  to 
be  composed  uf  ambassadors,  meeting  regularly  in  the  chief 
town  of  the  vorort  on  the  first  Monday  in  July,  with  the  bur- 
gomaster or  schultheiss  of  the  presiding  canton  for  their  fore- 
man. This  diet  declares  war,  concludes  peace,  and  makes 
all  treaties  with  foreign  powers  ;  but  for  the  validity  of  these 
acts,  three-fourths  of  the  votes  of  the  cantons  are  necessary. 
In  other  matters  of  business  an  absolute  majority  decides. 
Military  capitulations,  and  conventions  concerning  affairs  of 
police  or  public  economy,  may  be  made  by  single  cantons, 
provided  they  oppose  no  federal  principles,  nor  existing 
league,  nor  cantonal  rights  ;  and  they  must  also  be  made 
known  to  the  diet.  Ambassadors  from  the  league  may  be 
sent  to  foreign  powers  when  their  appointment  is  thought 
necessary.  In  extraordinary  cases  the  vorort  may  be  invested 
with  especial  powers,  and  a  committee  can  be  appointed, 
composed  cf  the  officer  of  the  vorort  who  is  entrusted  with 
the  management  of  the  federal  affairs,  in  conjunction  with 
other  representatives  of  thc  confederation.  In  both  cases 
two-thirds  are  necessary  to  give  validity  to  any  resolution. 


214 


POLITICAL  SCIENCE, 


This  representative  committee  is  chosen  by  six  circles  of  can- 
tons each  in  turn.  The  tagsatziuig  giv^es  the  requisite  instruc- 
tions to  these  federal  representatives,  and  fixes  the  duration 
of  their  duties,  which  cease,  of  course,  when  there  is  a  new 
tagsatziiiig.  When  this  assembly  is  not  in  session,  the  vorort 
has  the  charge  of  federal  affairs  within  the  limits  existing 
before  1798.  The  cantons  of  Zurich,  Bern,  and  Luzern,  in 
turn  for  two  years  each  take  the  prcsidence  implied  in  the 
word  vorort.  Cloisters  and  chapters  are  allowed  to  continue, 
but  are  subject  to  taxation,  like  private  property.  The  Hel- 
vetic national  debt  is  acknowledged. 

Between  1814  and  1816  most  of  the  cantons  revised  or  made 

Constitutions  of  0^*^^  their  constitutions.  Meyer  von  Knonau 
Cantons.  classifies  these  *  under  ten  heads,  the  smaller 

cantons  six  in  number  being  democratic,  Bern  and  Freiburg 
"  patricio-aristocratic ; "  Zurich  and  Soleure,  Lucern  and 
Basel,  aristocratic-rcpresentatrvc the  two  former  with  con- 
siderable political  weight  given  to  their  chief  town,  the  latter 
with  less  ;  Schaffhausen  and  Geneva,  representative,  with  some 
weight  of  the  capital;  the  Grisons  and  Valais  "democratic 
federative,"  etc.  In  1831,  after  the  overthrow  of  the  old 
Bourbon  dynasty,  the  constitutions  were  generally  submitted 
to  revision,  and  the  changes  were  all  in  a  democratic  direction. 
But  the  federal  constitution  was  not  altered  until  the  next 
great  revolutionary  storm  which  swept  over  so  many  countries 
of  Europe  in  1848. 

This  constitution  of  1848  brings  Switzerland  near,  if  not 

«.  .       ...       into,  the  class  of  Bundestaaten.    The  cantons, 

Swiss  constitution  •••■'^  ' 

°f  '848.  (declares  (Art.  3)  to  be  sovereign,  so  far  as 

their  sovereignty  is  not  limited  by  the  federal  constitution, 

*  Cited  bv  Politz  in  his  Europ.  Verfass.  seit  1789,  iii.,  213. 
The  third  voliuiie  of  this  work  is  more  than  half  taken  up  with  the 
different  federal  and  cantonal  constitutions,  until  1831.  The  federal 
constitution  of  1848  which  I  have  access  to  is  contained  in  (Jhillany 
and  Schnitzler's  Afanuel  Diploni.,  ii.,  385  and  onw.  The  constitiuion 
of  1874,  April  19,  I  have  in  M.  Antoine  Morin's  Precis  de  I'Histoire 
Politique  de  la  Suisse,  V.,  331,  and  onw.  The  three  first  volumes  of 
this  work  were  not  at  my  command  when  this  sketch  was  first  written. 
Nor  have  I  access  to  HUmtschli's  Staats-u.-Rechts-Gesch  v.d.  Schwci/.. 


CONFEDERATIONS. 


215 


and  they  exercise,  as  such,  all  those  rights  which  are  not 
transferred  :o  the  federal  power.  All  Swiss  are  equal  before 
the  law,  no  relations  of  dependence  can  exist,  nor  privileges 
of  place,  birth,  family  or  person  (Art.  4).  "The  confedera- 
tion guarantees  to  the  cantons  their  territory,  their  sove- 
reignty as  limited  by  Article  3,  their  constitutions,  the  free- 
dom and  rights  of  the  people,  the  constitutional  rights  of  the 
people  together  with  the  rights  and  functions  which  the  people 
has  conferred  on  the  magistrates  (Art.  5).  The  cantons  are 
bound  to  ask  of  the  confederation  the  guaranty  of  their  con- 
stitutions, and  this  is  given,  provided  these  contain  nothing 
contrary  to  the  federal  constitution,  if  their  form  be  republi- 
can, representative  or  democratic,  and  if  they  have  been  ac- 
cepted by  the  people  and  can  be  revised,  when  the  absolute 
majority  of  the  citizens  demand  it."  The  cantons  are  for- 
bidden to  form  political  leagues  and  conventions  with  one 
another,  but  may  enter  into  agreements  in  respect  to  matters 
of  legislation,  to  judicial  affairs  and  administration,  which 
must  however  be  laid  before  the  authorities  of  the  federal 
union  ;  and  these  may  forbid  their  execution,  if  they  are 
found  to  contain  anything  that  runs  counter  to  the  confeder- 
ation or  to  the  rights  of  other  cantons.  If  they  do  not,  the 
cantons  concerned  in  these  agreements  are  entitled  to  call 
on  the  confederation  to  give  aid  in  carrying  them  into  effect 
(Art.  7).  The  confederation  alone  can  declare  war,  conclude 
peace,  and  enter  into  leagues  and  conventions,  especially  into 
such  as  relate  to  customs  and  trade  with  foreign  countries  ; 
but  the  several  cantons  may  make  conventions  in  matters  of 
public  economy,  police  and  neighborly  intercourse  with  a 
foreign  country,  provided  the  same  be  not  inconsistent  with 
federal  obligations  (Arts.  8,  9).  The  confederation  is  not 
authorized  to  keep  up  a  standing  army,  and  no  canton  or  part 
of  a  divided  canton  [like  l^ascl,  or  yXppenzeU  )  can  keep  on 
foot  more  than  three  hundred  troops,  not  including  a  gen- 
darmerie (landjager).  (Art.  13.)  The  cantons  must  abstain, 
when  disputes  arise  between  them,  from  vindicating  tlieir 
own  rights,  and  from  arming  for  this  purpose,  and  must  sub- 


2l6 


POLITICAL  SCIENCE. 


mit  to  the  decision  of  the  federal  power  (Art.  14).  Aid  must 
be  given  to  a  canton  in  danger  by  other  cantons  which  are 
apprised  of  it  by  the  cantonal  government,  and  in  like  man- 
ner by  the  cantons  to  the  federal  government  when  their  afd 
is  invoked  (Art.  16).  The  army  of  the  confederation,  formed 
by  the  contingents  of  the  cantons,  consists  of  three  per  cent,  of 
the  Swiss  population  of  each  canton  ;  of  a  reserve  half  as  large  ; 
and  in  times  of  danger  the  remaining  forces  (the  landzuchr) 
of  the  cantons  may  be  called  out.  The  scale  determining 
the  quota  of  each  canton  must  be  revised  every  twenty  years 
(Art.  19).  The  confederation  has  power  given  to  it  in  Art. 
20,  to  secure  uniformity  and  readiness  for  service  in  the  mili- 
tary forces.  It  is  also  authorized  to  build  or  aid  in  construct- 
ing public  works  (Art.  21),  to  found  a  university  and  a  poly- 
technic school  (Art.  22),  to  control  customs  and  duties  on 
objects  imported,  exported,  or  carried  through  the  country — 
of  which  each  canton  is  to  receive  four  batzen  or  less  than 
three  cents  for  each  inhabitant  (Arts.  24  to  26).  The  caiitons 
(Art.  32),  can  introduce  no  new  tolls  (Art.  31)  The  posts, 
roads  and  bridges,  in  maintaining  which  the  confederation 
has  an  interest,  the  coining  of  money,  weights  and  measures 
on  the  principles  of  the  existing  arrangements  for  this  pur- 
pose, the  manufacture  and  sale  of  gunpowder,  belong  exclu 
sively  to  the  legislative  competence  of  the  confederation 
(Arts.  33  to  39).  All  Swiss  are  entitled  to  settle  in  any  of 
the  cantons  on  certain  conditions  (Art.  41),  and  settlement 
gives  all  rights  of  actual  citizens  except  that  of  voting  in 
communal  affairs  and  a  share  in  the  property  of  communes 
and  corporations,  etc.  (Art.  41).  Every  citizen  of  a  canton  is 
a  citizen  of  Switzerland,  but  no  one  can  exercise  his  rights 
in  more  than  one  canton  (Arts.  42,  43).  "  The  free  exercise 
of  divine  worship  is  secured  to  the  acknowledged  Christian 
confessions  in  the  whole  extent  of  the  confederation.  But  it 
is  reserved  for  the  cantons  as  well  as  for  the  confederation  to 
take  the  proper  steps  in  regard  to  the  maintenance  of  public 
order  and  of  peace  between  the  confessions."  (Art.  44-) 
The  freedom  of  the  press  is  secured,  but  the  confederation 


CONFEDERATIONS. 


217 


may  punish  the  abuses  of  the  freedom  of  the  press  so  far  as 
they  are  directed  against  the  confederation  itself  and  its  pubHc 
officers ;  and  the  cantons  are  authorized  to  make  laws  on  the 
same  subject,  which,  however,  must  be  approved  by  the 
btuidcsratk  or  federal  council  (Art.  45).  The  citizens  have 
the  right  to  form  associations  which  are  not  opposed  to  jus- 
tice or  dangerous  to  the  political  state.  The  cantons  can 
legislate  on  this  matter  (Art.  46).  The  right  of  petition  is 
secured  (Art.  47).  All  the  cantons  are  bound  to  put  all 
Swiss  citizens  (Schweitzburger,  or  citizens  of  the  confedera- 
tion), in  their  legislation,  as  well  as  in  their  judicial  proceed- 
ings, on  a  footing  of  equality  with  their  own  citizens  (Art.  48). 
Judgments  of  courts  in  any  canton  can  be  executed  in  any 
other  (Art.  49).  Every  person  is  entitled  to  his  natural 
courts,  and  no  special  courts  can  be  established  (Art.  53). 
The  punishment  of  death  shall  not  be  inflicted  for  political 
crimes  (Art.  54).  A  law  of  the  confederation  shall  regulate 
extradition  between  cantons,  but  there  shall  be  no  such  ex- 
tradition for  political  offences  or  for  offences  against  the  laws 
relating  to  the  press  (Art.  55).  Foreigners  who  disturb  the 
peace  or  safety  of  the  confedcratTon  may  be  required  to  leave 
Swiss  territory  by  a  law  of  the  confederation  (Art.  57).  The 
order  of  Jesuits  and  affiliated  societies  shall  be  admitted  into 
no  part  of  Switzerland  (Art.  58). 

The  bundesversammlung ,  or  the  assembly  of  the  confedera- 
tion, is  made  to  consist  of  two  houses — a  nationnlratli,  or  coun- 
cil of  the  nation,  answering  to  our  house  of  representatives, 
and  a  standeratk  or  council  of  the  estates,  that  is,  of  the  can- 
tons, answering  to  our  senate.  A  representative  can  be  sent 
from  eeich  canton  for  every  20,000  souls,  and  for  a  fraction  of 
over  lO.ooo.  Every  canton,  and,  where  a  canton  is  divided, 
each  of  its  parts,  is  entitled  to  at  least  one  (Art.  61 ).  The  elec- 
tions are  direct,  in  districts  not  consisting  of  parts  of  different 
cantons  ;  and  every  male  Swiss,  twenty  years  old  or  upwards, 
is  entitled  to  cast  his  vote,  who  is  not  c-xchulcd  from  active 
citizenship  by  the  laws  of  the  canton  in  whicii  lie  resides 
(Art.  63).    Every  person  who  is  qualified  to  vote,  and  is  a 


2l8 


POLITICAL  SCIENCE. 


layman,  is  eligible  to  political  office.  The  possession  of 
citizenship  for  five  years  entitles  a  naturalized  citizen  to  hold 
office.  The  house  of  representatives  is  renewed  by  election 
every  three  years  (Art.  65).  No  member  of  one  house  can 
be  also  a  member  of  the  other,  nor  can  any  public  officer 
chosen  by  the  nationalrath  be  one  of  its  members  at  the 
same  time  (Art.  66).  This  house  as  well  as  the  other  chooses 
from  among  its  members  a  president  and  vice-president,  but 
the  president  cannot  be  eligible  to  the  same  office  or  to  that 
of  vice-president  for  the  next  regular  session  (Arts.  67  and 
71).  The  stiinderath  consists  of  forty-four  deputies  of  the 
canton,  each  sending  two,  and  is  paid  by  the  cantons  them- 
selves (Arts.  69-72),  but  the  members  of  the  national  coun- 
cil are  paid  out  of  the  national  treasury. 

The  powers  of  the  legislature  are  for  the  most  part  suffi- 
ciently defined  by  the  definitions  of  the  powers  of  the  confed- 
eration already  enumerated.  They  together  fix  the  pay  of 
magistrates  and  officials  of  the  confederation,  create  officers, 
and  determine  the  salaries  pertaining  to  them  ;  their  sanction  is 
necessary  for  treaties  and  conventions  with  foreign  lands,  and 
they  must  accept  the  conventions  of  cantons  mentioned  above, 
before  these  can  have  force.  But  such  conventions  come  be- 
fore these  houses  only  when  the  executive  or  a  canton  has  an 
objection  to  make  against  them.  They  have  an  oversight 
of  the  administration  and  judicial  affairs  of  the  confederation. 
Such  disputes  between  cantons  as  have  an  international 
nature,  come  before  them.  It  is  competent  for  them  to  say 
whether  a  subject  belongs  within  the  sphere  of  the  confedera- 
tion or  that  of  a  canton,  and  whether  a  matter  falls  within 
the  province  of  the  council  of  the  confederation  or  of  its 
court.  In  the  elections  which  they  are  entitled  to  make  of 
persons  to  fill  the  council,  the  court,  the  chancery,  or  higher 
military  offices,  etc.,  the  houses  vote  together,  under  the 
president  of  the  nntionalratli  as  their  head  ;  and  an  absolute 
majority  of  the  two  houses  decides.  The  same  joint  meet- 
ings are  required  when  pardons  are  granted,  and  when  the 
question  of  competence  as  between  a  canton  and  the  confed- 


CONFEDERATIONS. 


219 


eration  is  to  be  settled  (Arts.  73-80).  Each  house  has  the 
initiative,  and  each  member  and  the  cantons  are  authorized 
to  propose  subjects  by  means  of  correspondence  (Art.  81). 

The  biindesrath,  or  executive  council  of  the  confederation, 
consists  of  seven  members  who  are  chosen  for  three  years, 
by  the  houses  as  was  said  above,  out  of  all  Swiss  citizens 
eligible  to  the  national  assembly  ;  but  not  more  than  one 
member  can  come  from  any  one  canton.  The  members  are 
paid  out  of  the  treasury  ;  they  can  engage  in  110  other  pur- 
suit, nor  hold  any  other  office  during  the  term  of  their  coun- 
cillorship  ;  they  have  a  president  and  vice-president  annually 
chosen  by  the  two  houses  ;  they  can  appear  before  the 
houses  and  give  their  opinions  or  make  propositions  there ; 
and  must  have  at  least  four  members  present  in  order  to  do 
business.  The  president  of  the  council  is  not  re-eligible  for 
the  next  year,  either  as  president  or  as  vice-president ;  nor 
can  the  vice-president  fill  his  office  two  years  in  succession 
(Art.  83-Art.  89K  The  duties  of  the  executive  council  are 
enumerated  in  Art.  90,  but  need  no  especial  mention  for  the 
most  part.  In  times  of  pressing  necessity  it  is  authorized,  if 
the  two  houses  are  not  in  session,  to  raise  the  requisite  num- 
ber of  troops,  and  to  give  orders  concerning  the  disposition 
to  be  made  of  them,  subject  to  the  immediate  call  of  the 
houses,  provided  the  number  of  troops  called  for  exceeds 
two  thousand  men,  or  the  summons  is  for  longer  than  three 
weeks  (Art.  90,  %  ll).  The  council  is  divided  into  depart- 
ments (committees)  in  order  to  forward  business  (Art.  91). 

The  federal  court,  assisted  by  a  jury  in  criminal  cases,  con- 
sists of  eleven  judges  with  as  many  deputies  or  assistants  as 
the  houses  shall  order.  They  are  chosen  by  the  houses  for 
three  years  ;  and  every  Swiss  is  eligible  who  can  be  a  mem- 
ber of  the  national  assembly.  They  judge,  in  questions  not 
international,  between  cantons  and  between  the  confederation 
and  a  c-anton,  in  questions  between  the  confederation  and  a 
private  person  or  a  corporation,  if  the  latter  are  complain- 
ants, and  if  the  subject  of  the  complaint  is  of  considerable 
value,  the  lower  hniit  of  value  being  subject  to  the  decisions 


220 


POLITICAL  SCIENCE. 


of  the  legislature.  They  decide  also  in  respect  to  cases  touch- 
ing the  status  of  persons  who  have  no  residence  [IieimatJilo- 
sigkeit).  In  the  cases  where  questions  between  cantons,  or  be- 
tween a  canton  and  the  confederation,  come  before  them, 
they  come  on  reference  from  the  council  of  the  confederation. 
If  the  council  decides  negatively  as  to  whether  a  matter 
ought  to  come  before  the  court,  the  houses  have  the  final 
determination  on  that  point  lArt.  lOi).  Other  cases  of 
considerable  value — the  limit  to  be  assigned  by  the  houses — 
may  be  brought  before  them  by  consent  of  the  parties  at 
issue,  who  are  then  to  pay  the  entire  costs.  The  trials  with  a 
jury  by  the  federal  court,  touch  cases  where  officials  are 
handed  over  for  trial  by  a  federal  authority ;  those  where 
high  treason  against  the  confederacy,  or  revolt  and  violence 
against  its  magistrates,  are  to  be  judged  ;  international  crimes 
and  offenses,  political  crimes  and  offenses,  causing  disorders 
which  have  given  occasion  to  an.  armed  intervention  of  the 
confederation.  In  these  classes  of  trials  the  legislature  only 
has  the  right  to  grant  amnesty  or  pardon  (Art.  104,  etc.). 

This  constitution  seems  to  be  needlessly  particular,  show- 
ing the  mind  of  the  German  race  therein,  and  it  has  some 
serious  faults — such  as  the  absence  of  an  independent  confed- 
erate army,  the  want  of  a  head  to  the  executive,  the  permis- 
sion to  the  cantons  to  treat  with  foreign  states  in  regard  to 
certain  less  important  relations  with  neighbors  outside  of  the 
confederacy,  the  restrictions  on  the  taxing  power;  but,  on 
the  whole,  it  is  a  constitution  with  excellent  adaptation  to  a 
people  like  Switzerland,  which,  on  account  of  its  neutraliza- 
tion, needs  no  proper  standing  army  ;  and  it  is  dictated  by 
a  sincere  and  wise  aim — to  secure  a  government  of  sufficient 
strength,  yet  not  calculated  to  alarm  the  jealous  cantons, 
whose  whole  history  has  been  shaped  by  the  endeavor  to 
protect  their  independence. 

The  constitution  of  1848  continued  in  force  until  1874. 
Attempts  to  revise  Projccts  to  rcvisc  it,  partial  as  in  1866,  when  ol 

the  Swiss  constitu- 

lion-  nine  articles  changing  the  instrument  of  govern- 

ment two  only  were  adopted,  or  entire,  as  in  1872,  were  pro- 


CONFEDERATIONS. 


221 


posed.  This  project,  when  submitted  to  popular  vote  after 
having  been  first  discussed  by  the  chambers  in  1869,  was 
rejected  by  a  slender  majority  of  5,511,  and  by  thirteen  out 
of  twenty-two  cantons  ;  the  Catholic  cantons  and  the  canton 
of  Vaud  (Lausanne)  being  decidedly  opposed  to  it.  The  pro- 
ject tended  too  much  towards  centralization  ("  unitarisme  ") 
to  please  the  older  and  smaller  cantons,  and  the  new  matter 
bearing  on  religion  was  not  suited  to  please  all  Catholics. 
There  was  also  a  plan,  ugly-looking  and  in  principle  false, 
although  not  very  dangerous,  of  a  popular  veto  introduced 
into  the  constitution  to  the  effect  that  "  federal  laws  and 
resolutions,  not  urgent  in  their  nature,  are  submitted  to  the 
people  for  their  adoption  or  rejection,  if  the  demand  to  have 
this  done  proceed  from  50,000  active  citizens,  or  from  five 
cantons."  In  regard  to  matters  of  religion  the  federal  coun- 
cil (bundesrath)  proposed  the  following  article:  "  Liberty  of 
conscience  is  guaranteed.  No  one  can  be  disturbed  in  the 
exercise  of  his  political  and  civil  rights  on  account  of  reli- 
gious opinions,  nor  be  constrained  to  perform  a  religious  act. 
No  one  is  bound  to  pay  imposts,  the  product  of  which  is  ap- 
propriated to  the  expenses,  properly  so  called,  of  a  religious 
confession  or  corporation  to  which  he  does  not  belong."  By 
this  article,  if  adopted,  a  canton  could  no  longer  oblige  a 
citizen  to  baptize  his  children,  nor  to  submit  them  to  religious 
and  confessional  instruction,  nor  make  them  go  to  the  first 
communion  ;  the  citizen  who  refused  to  perform  certain  reli- 
gious acts  could  no  longer  be  put  under  a  guardian  ;  every 
one  could  marry  without  religious  forms  ;  he  who  would  not 
take  an  oath  could  neither  be  punished  nor  excluded  from 
civil  employments.*  As  a  sort  of  compensation,  ecclesiastics 
could  be  chosen  into  the  chambers  from  which  article  64 
of  the  constitution  of  1848  excluded  them.  Hut  the  Cath- 
olic feeling  and  a  dread  of  too  great  power  in  the  federal 
constitution  were  sufficient  to  cause  the  rejection  of  the  re- 
vised instrument,  and  the  first  cause  acted  with  the  more 


*  Remarks  of  A.  Morin  (u.  s.,  iv.,  226). 


222 


POLITICAL  SCIENCE. 


vigor,  because  the  Vatican  council  had  been  so  recently- 
held. 

In  1874,  however,  a  new  constitution  was  actually  carried 
New  constitution  through  by  fourteen  out  of  twenty-two  cantons 
of  1874.  Catholic,  Freiburg,  and  the  Italian, 

Valais,  and  Tessin,  alone  voting  against  it),  and  by  a  major- 
ity of  142,000  voters  out  of  538,000  in  all.  This  constitution 
is  in  all  essential  respects  identical  with  that  of  1848.  A  few 
differences  or  additions  deserve  notice.  In  Art.  27  of  the 
constitution  of  1874,  the  additions  are  made  that  primary 
instruction,  which  must  be  "  sufficient,"  and  be  placed  under 
the  direction  of  the  civil  authority,  is  obligatory,  and  in  the 
public  schools,  gratuitous.  The  public  schools  must  be 
opened  to  the  adherents  of  all  confessions,  without  their 
suffering  in  any  way  in  their  liberty  of  conscience  and  of 
faith.  The  confederation  will  take  the  necessary  measures 
against  the  cantons  w'hich  do  not  satisfy  these  obligations. 
In  Art.  30,  the  cantons  of  Uri,  the  Orisons,  Tessin,  and 
Valais,  receive  on  the  score  of  their  international  mountain 
roads  an  annual  indemnity  of  more  than  half  a  million  of 
francs,  and  for  the  clearing  off  of  snow  from  the  St.  Gothard, 
Uri  and  Tessin  some  40,000  more  in  all.  This  might  be  right 
enough  ;  but  it  must  have  been  intended  also  as  a  douceur  to 
secure  votes  for  the  constitution.  If  so,  it  failed  of  its  object 
in  part,  for  three  of  these  cantons  gave  very  strong  majorities 
against  that  instrument.  The  payments,  however,  depended 
upon  faithfulness  in  attending  to  the  routes  in  question  (Arts. 
30,  37).  The  article  proposed  in  1869,  of  which  we  have 
spoken  above,  is  in  part  incorporated  (Art.  |9,  end).  The 
Jesuits  and  other  religious  orders  are  placed  under  a  stronger 
hand  than  in  the  constitution  of  1848.  They  and  affiliated 
societies  cannot  be  received  into  any  part  of  Switzerland, 
"  and  all  action  in  the  church  and  the  school  is  prohibited 
to  their  members."  This  prohibition  may  be  extended  also 
in  the  shape  of  a  federal  resolution  to  other  religious  orders 
dangerous  to  the  state,  or  which  disturb  peace  between  the 
confessions.     "  No  new  converts  or  religious  orders  can  be 


CONFEDERATIONS. 


223 


founded,  nor  shall  those  already  suppressed  be  established 
anew"  (Arts.  51,  52).  The  death-penalty  is  abolished  (Art. 
65).  The  laws  passed  by  the  federal  chambers  or  councils 
are  proposed  to  the  people  for  their  acceptance  or  rejection, 
if  the  demand  is  made  by  30,000  active  citizens,  or  by  eight 
cantons.  The  same  step  may  be  taker  in  regard  to  federal 
resolutions  which  have  a  general  bearing,  and  are  not  urgent 
in  their  character  (Art.  Sy). 

The  Swiss  federal  constitutions  all  seem  to  dread  placing 
power  in  the  hands  of  one  man.  There  is  no  president, 
properly  speaking,  although  the  presiding  officer  of  the  dnn- 
desrath  is  called  president  of  the  confederation.  Appointing 
power  falls  chiefly  to  the  two  legislative  bodies,  and  in  so 
small  a  country,  happily,  this  power  can  not  be  a  dangerous 
part  of  the  political  system.  Several  branches  of  legislation 
are  taken  away  from  the  cantons  and  given  to  the  federal 
legislature,  which  under  our  constitution  are  retained  by  the 
states.  Such  are  the  laws  involving  control  over  telegraphs, 
the  manufacture  and  sale  of  gunpowder,  the  right  of  marriage 
(including,  it  must  be,  the  questions  relating  to  divorce), 
and  sanitary  legislation.  Bankruptcy  is  exclusively  within 
the  province  of  the  federal  laws.  The  plan  of  giving  legis- 
lation to  the  general  government  in  matters  of  a  general, 
almost  international  character,  such  as  marriage,  guardianship, 
divorce,  etc.,  is  excellent  and  might  be  carried  further,  so  as 
to  include  all  the  branches  of  international  private  law.  On 
the  other  hand,  the  withholding  from  the  federal  government 
of  an  effective  military  power  seems  to  be  a  great  weakening 
of  its  attributions. 

%2\\. 

TJie  Dutch  United  Provinces. 

The  instrument  which  brought  together  the  seven  united 
„    ^  provinces  of  the  Netherlands  was  the  union  of 

Utrecht  union. 

Utrecht,  contracted  by  deputies  and  representa- 
tives from  the  estates  of  the  duchy  of  Gueldcrs,  and  the 
county  of  Zutphcn  in  Gueldcrland,  by  Holland,  Zcehind, 


224 


POLITICAL  SCIEN'CE. 


Utrecht  and  the  Ommelande  between  the  Ems  and  the  Lau- 
wers,  on  the  23d  of  Jan.,  1579.*  The  rest  of  Groningen  and 
Overyssel,  with  Drenthe  joined  the  confederacy  afterwards. 
They  form  a  perpetual  union,  as  if  they  were  one  province, 
without  separating  in  any  way  or  by  any  means.  All  privi- 
leges and  customs  are  left  untouched.  Differences  between 
members  and  towns  of  the  union  are  to  be  adjusted  by  ordi- 
nary justice,  and  in  an  amicable  way  (Art.  l).  They  agree 
to  aid  and  succor  one  another  even  to  the  shedding  of  blood 
in  the  war  against  Spain  (2),  and  any  other  potentate  (3). 
Fortifications  at  the  expense  of  the  union  are  to  be  erected 
by  generality ,  or  meeting  of  deputies  of  the  provinces  (4). 
Particular  taxes  are  granted  for  the  union's  expenses,  such  as 
those  on  beer,  salt,  wool,  grinding  flour,  cloth,  etc.  (5).  A 
census  of  the  inhabitants  between  the  ages  of  eighteen  and 
sixty  is  soon  to  be  taken  (8).  No  truce,  peace,  war  or  im- 
posts affecting  geJie7-ality  of  the  union  can  be  lawful,  save 
with  the  common  advice  and  consent  of  all  the  provinces. 
In  other  matters  the  majority  shall  decide,  which  is  to  be 
ascertained,  as  now,  in  the  getieraliiy  of  the  estates.  If  there 
should  be  disagreement  between  the  members  of  the  union, 
the  governors  shall  bring  the  parties  to  a  common  mind,  or, 
if  they  find  themselves  unable  to  do  this,  shall  call  in  the  aid 
of  assessors,  and  the  parties  shall  be  submissive  to  the  deci- 
sions thus  effected  (9).  No  province,  town  or  member  of  a 
province  can  make  any  confederacy  or  alliance  without  the 
consent  of  these  united  provinces  and  of  their  confederates 
(lO).  Others  may  be  admitted  into  the  league  by  the  com- 
mon advice  and  consent  of  all  the  provinces  (li).  A  plan 
of  coinage  for  all  the  provinces  is  soon  to  be  arranged  (12). 
In  matters  of  religion  Holland  and  Zceland  are  to  act  their 
pleasure.  The  religious  peace  made  by  the  Archduke  Mat- 
thias with  the  advice  and  consent  of  the  states-general  of 
the  provinces,  of  which  he  was  governor  and  captain-general, 

*  The  act  may  be  found  in  Dumont's  Corps  Univ.  Diplom.  iv.  in 
Dutch  and  French.  The  district  of  Drenthe  never  came  to  be 
an  independent  state  (H.  Leo,  ii.  805),  nor  did  North-Brabant, 


CONFEDERATIONS. 


225 


shall  continue  in  force.  Or  they  can  make  other  arrange- 
ments such  as  they  may  think  best  (13).  Conventual  and 
ecclesiastical  persons  are  not  to  be  interfered  with  in  the  en- 
joyment of  their  goods.  Alimentation  and  support  are  to 
be  given  to  persons  retiring  from  the  convents  on  any  reason- 
able ground  (14.)  Differences  affecting  all  the  provinces 
alike  are  to  be  settled  on  the  plan  mentioned  in  Art.  9.  In 
other  cases  governors  and  their  lieutenants  shall  adjust  the 
disagreements  (16).  Should  the  course  of  justice  in  a  prov- 
ince be  obstructed,  the  other  confederate  provinces  shall  aid 
in  a  restoration  of  judicial  order  (17).  No  impost  shall  be 
laid  in  any  province  to  the  prejudice  of  another  without  the 
consent  of  all  (18).  Written  summonses  are  to  be  sent  to 
all  the  provinces,  mentioning  the  business,  unless  it  be  secret, 
and  the  deputies  are  to  convene  at  Utrecht.  The  absence  of 
deputies  from  members  of  the  union  is  not  to  prevent  the 
passage  of  business.  The  absent  are  to  be  warned  that,  if 
not  present  by  a  certain  day,  they  will  lose  their  vote  (19). 
Members  are  expected  to  give  notice  to  those  who  shall  have 
authority  to  call  meetings  of  the  united  provinces,  of  the  busi- 
ness which  they  desire  to  bring  forward  (20).  The  governors 
and  lieutenant-governors  arc  to  swear  to  observe  all  the  arti- 
cles of  the  confederation  (21).  A  similar  oath  is  required 
from  all  brotherhoods  and  burgher-companies  in  all  cities 
and  villages  (vlecken)  of  the  union. 

In  explanation  of  Art.  13  it  is  added  that  the  provinces 
are  ready  to  receive  any  Roman  Catholic  towns  and  prov- 
inces adhering  to  their  religion,  yet  acceding  to  the  league 
in  other  respects.  The  stipulations  are  signed  by  the  depu- 
ties of  Gueldcrs  and  Zutphcn  [to  which  the  French  transla- 
tion of  the  instrument  adds,  by  Count  John  of  Nassau,  their 
governor,  for  himself,  together  with  the  other  deputies  in  the 
name  of  the  nobles  of  Gueldcrs  and  Zutphen — nothing  of 
which  is  in  the  Dutch  copy],  and  by  those  of  Holland, 
Zecland,  Utrecht  and  the  Ommelande.  Other  provinces 
or  parts  of  provinces  signed  the  articles  of  the  union  after- 
wards. 

VOL.  II. — 15 


226 


POLITICAL  SCIENCE. 


This  very  imperfect  constitution  was  devised  as  a  means  of 
Defects  of  this  common  defense,  and  not  without  the  hope, 
it  would  seem,  that  some  of  the  southern  prov- 
inces would  give  to  it  their  adhesion.  It  had  scarcely  any 
executive  machinery  and  no  general  head.  And  when  we 
consider  that  each  province  instead  of  being  a  unit  itself, 
had  estates  of  its  own,  consisting,  like  the  other  feudal  terri- 
tories of  mediaeval  Europe,  of  a  nobility  holding  fiefs,  of 
towns,  and  of  a  few  religious  corporations,  the  complications 
which  might  bring  harm  to  the  union  were  very  serious, 
especially  since  the  war  with  Spain  was  still  in  its  progress, 
and  the  relation  to  the  southern  provinces  were  uncertain. 
In  order  to  supply  one  want  of  the  constitution  a  latid-raed, 
or  general  council,  was  constituted,  consisting  of  thirty  mem- 
bers, apportioned  among  the  provinces  and  receiving  their 
appointments  from  the  estates  of  each.  Their  consent  was 
necessary  in  making  foreign  treaties,  but  they  were  not  to 
offer  opposition  to  the  arrangements  which  had  been  begun 
with  the  Duke  of  Anjou,  in  regard  to  becoming  the  sove- 
reign of  the  united  provinces  (Jan.  13,  1581).*  In  a  subse- 
quent meeting  at  the  Hague  (July  26,  15B1),  independence 
was  declared  and  allegiance  to  the  Spanish  crown  was  for- 
mally abjured. f     The  provinces  of  Holland  and  Zeeland 

*  Motley,  Dutch  Repub.,  iii.,  501 — Can  H.  Leo  in  his  Niederl. 
Gesch.,  ii.,  649,  speak  (?)  of  the  same  council,  when  he  makes  it  to 
consist  of  thirty-one  members,  some  of  whom  were  from  Brabant 
and  Flanders,  others  from  Holland,  Zeeland  and  Utrecht,  which,  I 
believe,  were  not  concerned  in  the  proceedings. 

f  In  this  act  of  abjuration  it  was  said  that  the  people  were  not  made 
by  God  for  the  prince,  but  the  prince  for  the  benefit  of  the  people, 
as  a  father  for  his  children,  etc.  It  may  be  worth  our  wiiile  to 
quote  Prof  Leo's  outburst  of  anger  against  this  harmless  declaration 
of  an  almost  self-evident  truth.  "  It  is  a  comijletely  stupid  question 
whether  the  prince  exists  for  the  people  or  the  peojjle  for  the  prince, 
— a  question  so  stupid  that  every  one  who  enters  into  it  from  any 
side  [as  being  a  truth]  can  only  bring  out  stupidities."  Mr.  Motley's 
sober  words  (iii.,  509,  u.  s.)  are  that  "these  fathers  of  the  republic 
laid  down  wholesome  truths,  which  at  that  time  seemed  startling 
blasphemies  in  the  ears  of  Christendom.  All  mankind  know —  said 
the  preamble — a  prince  is  api)ointed  by  God  to  cherish  his  subjects, 


CONFEDERATIONS. 


227 


wished  to  confer  on  William  of  Orange  the  entire  sovereignty 
within  their  borders,  as  long  as  the  war  should  continue,  in- 
cluding supreme  military  command  with  power  of  military 
appointment,  and  (with  consent  of  the  estates)  the  appoint- 
ment of  financial  and  judicial  officers.  This  new  and  en- 
larged stadtholdership  was  accepted  by  him  July  5,  1581. 
The  election  of  Anjou  took  place  the  same  year,  but  he  did 
not  arrive  in  the  provinces  until  Feb.,  1582. 

The  duke  of  Anjou  failed  most  miserably,  and  after  retiring 
into  France,  died  in  1584,  the  same  year  in  which  William 
was  assassinated.  The  same  motive  which  led  the  provinces 
to  choose  a  supreme  chief  from  a  rival  of  Spain,  now  led  them 
to  seek  the  alliance  of  England.  The  earl  of  Leicester,  who 
was  invested  with  the  authority  of  stadtholder-general,  showed 
almost  equal  incapacity  with  Anjou,  and  by  his  policy  of 
favoring  the  democratic  element  which  was  attached  to  the 
house  of  Orange,  seems  to  have  raised  up  that  spirit  of 
jealousy  within  the  states-general  towards  the  chief  execu- 
tive, which  was  so  important  an  element  in  Dutch  history 
afterwards.  He  died  soon  after  the  ruin  of  the  Spanish  Ar- 
mada in  1587,  a  defeat  which  was  the  great  fruit  of  the 
Dutch  alliance  with  England. 

The  difficulties  between  the  states  general  and  Leicester, 
when  he  first  went  over  to  the  provinces,  will  illustrate  where 
the  point  of  weakness  in  the  constitution,  and  of  possible 
conflict,  would  be  likely  to  appear  afterwards.  The  states 
general  offered  him  complete  or  absolute  power,  but  under- 
stood, as  it  appears,  power  without  limit  of  time  ;  and  ex- 
pected that  he  should  act  under  advisement  of  a  council,  and 
of  course  respect  the  liberties  which  the  provinces  had  en- 
joyed under  the  Emperor  Charles  V.  He  chafed  against 
their  restrictions  and  oppositions,  took  a  part  which  vexed 
the  leading  men  of  Holland  and  Zccland,  and  intrigued  with 

even  as  a  shepherd  to  guard  his  sheep.  When  therefore  he  oppresses 
his  subjects,  he  is  to  be  considered  not  a  prince,  l)ut  a  tyrant.  As 
such,  the  estates  of  ilie  land  may  lawfully  and  reasonably  oppose 
him,  and  elect  another  in  his  room." 


228 


POLITICAL  SCIENCE. 


disaffected  members  of  the  clergy.  The  working  of  the 
Dutch  poHtical  system  was  at  this  time  and  afterwards  some- 
thing like  this.  Every  province  had  its  own  stadtholder,  as 
it  had  had  before  the  revolt  from  Spain,  or,  it  might  happen, 
two  or  more  provinces  united  in  selecting  the  same  person  to 
hold  this  office.  The  estates  of  the  provinces  consisted 
chiefly  either  of  nobles  or  of  towns,  governed  by  town  coun- 
cils which  perpetuated  themselves  without  any  popular  vote. 
All  the  constitutions,  then,  were  aristocratic,  while  there  was 
a  population  of  free  men  who  had  no  share  in  the  govern- 
ments. In  general  meetings  of  the  estates  the  deputies  were 
sent  by  appointment  of  the  particular  province,  and  as  the 
magistrates  in  the  towns  (the  Schoffen  or  Schepen)  were  not 
skilled  in  political  affairs,  it  had  long  been  the  custom  for 
particular  estates  and  for  the  estates  of  a  whole  province  to 
transact  their  business  by  paid  agents  called  pensionaries,* 
who  were  sometimes  accomplished  lawyers  and  statesmen. 
Such  was  Olden-Barneveldt,  a  contemporary  of  prince  Mau- 
rice ;  and  such  Hugo  Grotius  :  both  were  in  their  time  pen- 
sionaries of  Rotterdam,  and  the  former,  of  all  .  Holland  and 
Zeeland,  that  is,  of  the  council  of  the  estates,  hence  called 
grand  pensionary,  having  an  influence  from  his  station  and 
character  greater  than  that  of  any  other  man  in  the  provinces. 
Holland  with  its  large  cities  and  its  numerous  operatives  on 
the  land  and  on  the  sea  had,  as  has  been  said,  a  democratic 
class  which  was  a  dangerous  element,  and  the  more  so,  be- 
cause the  government  was  in  the  hands  of  the  aristocracy. 
We  may  conceive  that  where  the  reformation  under  a  synodal 
form  of  church  government  was  organized,  jealousies  might 
arise  between  the  ministers  and  the  leaders  of  the  state  which 
were  increased  after  Arminianism  was  beginning  to  supplant 
the  Calvinistic  theology  at  the  university  of  Francker  and 
elsewhere.  The  sympathies  too  of  such  men  as  Barncveldt 
and  Grotius  lay  on  the  Arminian  side  in  theology  ;  but  cspe- 

*  vSee  for  an  account  of  the  office  of  pensionaries,  Warnkonig, 
Staats-  u.  Rechtsgescli.  Flandern,  ii.,  146,  and  §  237  of  the  present 
work. 


CONFEDERATIONS. 


229 


cially  these  religionists  were  more  willing  to  consent  to  state 
encroachments  on  church  liberty  than  were  their  Calvinistic 
opponents.  On  the  other  hand  the  stadtholders  of  the  house 
of  Orange-Nassau  had  perpetual  blocks  put  in  their  way  by 
the  leaders  in  the  separate  states — that  is,  especially  in  Hol- 
land, the  great  and  rich  province — and  thus,  as  was  very  natu- 
ral, there  arose  two  parties,  the  state's  rights  party  headed  by 
.■^uch  officers  of  the  state  as  Barneveldt  and  the  De  Witts,  and 
the  Orange  or  more  democratic  party.  The  stadtholders  of 
this  house  rested  for  their  political  support  more  on  the 
smaller  and  north-eastern  provinces  ;  they  also  allied  them- 
selves with  the  Calvinistic  or  Gomarist  party  in  the  Dutch 
Reformed  Church,  and  the  lower  classes  in  the  towns  were 
generally  on  their  side.  The  united  provinces  were  naturally 
jealous  of  a  power  that  might  grow  into  a  tyranny,  and  thus 
they  put  a  check  on  the  general  stadtholders  that  at  times  was 
very  hard  to  bear.  These  complications  of  forces  in  the 
aristocratic  bodies  will  explain  and  in  part  excuse  the  follies 
that  appear  in  the  history  of  the  Dutch  provinces.  It  ought 
to  be  added  that  nothing  in  the  Utrecht  union  required  a 
general  stadtholder,  or  indeed  any  central  government,  so 
that  when  one  died,  who  had  been  in  the  office,  the  room 
was  open  for  all  machinations  against  appointing  another. 
The  choice  of  Anjou  and  that  of  Leicester  were  only  tempo- 
ary  expedients,  and  pledged  the  states-general  to  no  course 
for  the  future. 

While  Leicester  was  in  the  provinces,  prince  Maurice  was 
Maurice.  M.itu-  stadtlioldcr  of  Holland  and  Zeeland,  and  after- 

holder  of  llolLind, 

Zeeland,  etc.  wards  filled  the  same  office,  by  appointment  in 
Utrecht,  in  Overyssel  (1590)  and  elsewhere.  He  was  head- 
admiral  of  the  provinces  with  an  admiralty-council  to  assist 
and  check  him.  He  was  the  great  general  of  the  country, 
and  his  successes  brought  towns  or  forts  still  occupied  by 
Spanish  troops  under  the  control  of  the  republic.  The  cap- 
ture of  Groningen  in  1594  united  that  town  for  the  first  time 
with  the  rest  of  the  province  under  the  Utrecht  union.  In 
1598   Philip  II.  of  Spain,  by  separating  the  Netherlands 


230 


POLITICAL  SCIENCE. 


from  his  empire,  and  placing  as  sovereigns  over  it  his  daugh- 
ter Clara  Eugenia  and  her  husband,  an  Austrian  archduke, 
showed  an  intention  to  retire  from  the  contest.  His  death 
in  the  same  year  rendered  future  hostilities  either  of  Spain  or 
of  the  Spanish  Netherlands  with  the  united  provinces  less 
probable  than  before  ;  and  a  truce  for  twelve  years,  in  1609, 
prepared  the  way  for  the  peace  between  Spain  and  the  Dutch 
republic,  made  at  Miinster  in  1648,  at  the  time  when  the 
peace  of  Westphalia  was  under  negotiation.  By  this  peace 
Spain  acknowledged  Dutch  independence,  and  consented  to 
the  closing  of  the  Scheldt,  which  brought  with  it  the  decline 
of  Antwerp  and  the  greater  prosperity  of  the  rival  seaports 
of  Holland. 

The  earlier  years  of  the  seventeenth  century  were  filled 
with  bitter  religious  disputes,  and  a  synod  was  ordered  with 
reference  to  them  by  the  states-general,  through  the  influence 
of  Prince  Maurice,  and  the  votes- of  Zeeland,  Guelders,  Fries- 
land  and  Groningen.  The  synod  met  at  Dort  in  161 8,  and 
the  unrighteous  condemnation  of  Olden-Barneveldt  took 
place  in  1619.  This  great  crime  was  committed  by  the 
states-general  then  under  the  control  of  the  Orange  party  ; 
and  Maurice  himself,  not  without  unconstitutional  proceed- 
ings, procured  the  downfall  of  his  determined  enemy  by  en- 
couraging a  feeling  of  religious  intolerance  in  which  he  did 
not  share.  The  synod  condemned  the  remonstrants  or  Ar- 
minians,  and  many  fled  from  the  land. 

We  pass  over  a  number  of  years,  during  which  Maurice 
.  and  his  brother  were  stadtholders,  down  to 

1647,  when  William  H.,  son  of  the  latter  stadt- 
holdcr,  was  chosen  to  fill  the  office.  There  was  then  a  dis- 
pute, between  the  states-general  together  with  the  stadtholder 
on  the  one  part  and  Holland  on  the  other,  in  regard  to  the 
dismission  of  troops  which  the  former  wished  to  retain  and 
the  latter  would  have  the  principal  burden  of  paying.  The 
estates  of  Holland  decided  in  1650  to  dismiss  quite  a  number 
of  companies  without  waiting  for  the  states-general  to  act. 
The  latter  reminded  the  troops  of  their  oath,  bade  them  stay 


CONFEDERATIONS. 


231 


and  gave  to  the  stadtholder  power  and  orders,  in  conjunction 
with  a  committee  of  their  body,  to  take  the  necessary  steps 
to  prevent  this  ; — such  was  the  meaning  of  their  language. 
The  efforts  to  induce  the  towns  of  Holland  to  revoke  the 
votes  of  the  estates  were  fruitless  ;  and  the  stadtholder  made 
a  wild  attempt,  after  arresting  six  members  of  the  estates  of 
Holland,  to  seize  on  Amsterdam,  through  his  relative,  Fred- 
eric of  Nassau,  stadtholder  of  Friesland.  The  attempt  failed, 
and  soon  the  prince  died  eight  days  before  the  birth  of  a  son, 
who  was  afterwards  William  HI.,  of  England  as  well  as  of 
stadthokiership  Holland.  From  this  time  until  1672,  the  prov- 
inces  were  without  a  general  governor.  The 
disposal  of  places  and  the  pardoning  power  were  now  given 
to  the  estates  of  the  separate  provinces.  At  the  meeting  of 
the  states-general  in  165 1  the  provinces  of  Friesland  and 
Groningen  claimed  that  the  decision  of  disputes  between  the 
provinces  required  the  decision  of  a  stadtholder,  but  in  the 
reply  of  the  others  several  ways  were  mentioned  of  compos- 
ing the  difficulties. 

For  about  twenty  years  the  aff"airs  of  state  in  the  provinces 
John  De  Witt,    wcrc  managed  by  the  very  able  John  Dc  Witt, 
,  grand  pensionary  of  Holland.     In  1667,  the 

The  perpetual    o  i  ./  '  ' 

<='^''^'-  estates  of  Holland  under  his  influence  passed 

what  was  called  the  perpetual  edict.  Its  articles  were  in- 
tended to  abridge  the  power  of  appointment  of  a  (future) 
stadtholder,  and  to  prevent  such  an  office  from  being  united 
with  that  of  general-captain.  In  fact,  it  aimed  at  doing 
away  altogether  with  the  stadtholdership.  In  the  other  prov- 
inces, in  which  an  Orange  party  was  stronger,  an  act  called 
the  act  of  Jiarmony  was  substituted  for  this,  by  which  the 
stadtholdership  was  allowed,  but  was  forever  to  be  separated 
from  the  offices  of  general,  and  of  admiral  in  chief.  In  1672, 
the  quarrels  between  the  Orange  and  the  De  Witt  parties 
came  to  be  very  high,  especially  in  the  province  of  Overyssel. 
War  also  had  been  declared  by  France  against  Holland  ;  and 
England  with  Sweden  were  her  allies  in  a  most  flagitious 
attempt  against  the  republic.     Its  territories  were  invaded  by 


232 


POLITICAL  SCIENCE. 


Louis  XIV.  ;  and  the  Bishop  of  Miinster  with  the  Archbishop 
of  Cologne,  on  the  borders  of  the  provinces,  joined  in  the 
alhance.  Meanwhile,  there  was  a  desire  expressed  by  the 
Orange  party,  then  in  the  majority  everywhere  except  in 
Holland,  that  the  prince  of  Orange,  not  yet  twenty-two  years 
old,  should  be  appointed  captain-general  for  life.  John  De 
Witt  had  to  yield,  so  far  as  to  consent  that  he  should  hold 
that  position  for  the  existing  campaign  under  some  limita- 
tions, but  even  to  this  Holland  would  not  give  its  assent.  In 
November,  1672,  when  Prince  William  reached  the  age  of 
twenty-two,  he  was  appointed  both  captain-  and  admiral-gen- 
eral. The  troops  were  in  a  poor  condition  ;  no  effectual 
preparations  seem  to  have  been  made  to  resist  the  invaders  ; 
Overyssel,  Guelders,  Utrecht,  Drenthe,  were  occupied  by  their 
armies,  and  many  of  the  people  charged  De  Witt  with  being 
more  anxious  to  put  down  the  Orange  party  than  to  resist 
French  arms.  The  Orange  party  was  intensely  excited  by 
the  unyielding  energy  of  De  Witt,  and  in  June  of  this  year  he 
was  attacked  and  severely  wounded  by  four  men  of  good 
condition,  of  whom  one  was  beheaded,  the  rest  having  es- 
caped. Demands  were  now  made  in  several  towns  of  Hol- 
land that  the  perpetual  edict  should  be  annulled,  and  the 
prince  created  stadtholder.  Rotterdam,  in  the  estates  of 
Holland,  brought  forward  the  motion  to  do  this,  and  Amster- 
dam proposed  his  elevation  to  the  stadtholdership.  Both 
were  carried,  and  he  received  for  life  the  dignity  which  his 
father  had  filled,  with  those  of  commander-in-chief  of  the 
armies  of  Holland  and  Zeeland  as  well  as  of  their  fleet,  and 
of  commander-m-chief  in  the  entire  united  provinces.  This 
outburst  of  feeling  reacted  against  De  Witt,  and  a  mob  drag- 
ging him  with  his  brother  from  prison,  where  they  were  shut 
up,  murdered  them  with  fiendlike  cruelty. 

By  1674  the  provinces  which  had  been  overrun  were  recov- 
w.iiiam  III.  stadt-  ^red,  and  the  states-general  gave  the  prince  of 
holder.  Orange  full  power  to  reconstruct  the  govern- 

ment there  as  he  would.  Utrecht  formed  a  new  constitu- 
tion with  a  stadtholdership  of  far  more  extensive  powers  than 


CONFEDERATIONS. 


the  same  office  had  in  Holland.  Holland  itself  made  the 
proposition  that  his  office  should  be  hereditary,  and  the  other 
provinces  concurred.  On  his  death,  as  King  of  England 
Vacancy  in  this  (1689-1702),  and  stadtholdcr  of  the  provinces, 
the  failure  of  male  descendants  of  his  body- 
brought  up  anew  the  question  of  a  stadtholder,  and  the  states 
of  Holland,  on  suggestion  of  the  pensionary  Heinsius,  gave 
the  states-general  to  understand  that  they  wanted  no  stadt- 
'holder  for  the  future.  A  time  of  confusion  followed  in  sev- 
eral of  the  provinces,  the  main  cause  of  which  was  the  at- 
tempt of  the  more  democratic  party  in  the  towns  to  alter  and 
get  possession  of  the  town  governments.  Only  Friesland 
had  a  stadtholder  in  the  person  of  John  William  Friso,  a 
member  of  the  Orange  family,  who,  however,  died  at  the  age 
of  twenty-four  in  171 1,  a  little  before  the  birth  of  his  only 
child,  William  Charles  Henry  Friso.  The  aft'airs  of  state  were 
in  the  hands  principally  of  Heinsius  the  pensionary,  who  on 
his  death,  in  1720,  was  succeeded  by  Van  Hoornbeck,  who 
was  raised  by  the  estates  of  Holland  from  the  office  of  pen- 
sionary of  Rotterdam  to  that  of  grand  pensionary  of  the 
council  of  the  province.  The  young  Prince  William  Friso, 
by  birth  stadtholdcr  in  Friesland,  was  chosen  to  the  same 
•  stathhoidcrship  dignity  at  the  age  of  seven,  in  Groningen,  and 
restored.  ^j^^j  ^j.  eleven         limitations  in  Guclders.  In 

1746,  during  the  danger  of  a  French  invasion,  the  common 
people  of  Zeeland  cried  out  again  for  the  restoration  of  this 
ofifice,  and  forced  the  government  to  yield.  In  the  same 
year  the  nobility  or  noblesse  of  Holland  proposed  to  confer 
on  iiim  the  ofifice,  as  a  hereditary  one  both  in  the  male  and 
female  line.  The  estates  of  Holland  accepted  the  proposal. 
Only  such  of  his  descendants  were  excluded  as  should  hold 
a  royal  or  electoral  dignity,  or  should  not  be  conformed  to 
the  reformed  religion  (the  Dutch  Reformed  Church),  or  should 
be  married  to  a  man  of  any  other  confession.  All  the  prov- 
inces in  turn  accepted  him  in  this  capacity  with  nearly  simi- 
lar extent  of  power,  and  conferred  on  him  other  high  offices 
besides,  including  that  of  governor  in  chief  of  the  Dutch  pos- 


234 


POLITICAL  SCIENCE. 


sessions  in  the  Indies.  Thus  the  Orange  party  may  be  said 
to  have  secured  for  their  head  a  kind  of  limited  monarchy, 
which  on  his  death,  went  to  his  successor,  his  son  by  Anne, 
daughter  of  George  II.  of  England.  He  was  driven  out  of 
the  provinces  in  1795,  at  the  time  of  the  formation  of  the 
Batavian  republic* 

We  notice  in  reviewing  the  progress  of  the  Dutch  constitu- 
RemarUs  on  ihe  ^iou  One  or  two  points  of  somc  importance  ; 
Dutch constitut,o„.  ^^^j  ^^.^^  ^j^^  coustant  hold  of  the  smaller,  and 

especially  the  eastern,  provinces  on  the  desire  to  have  a  uni- 
tary head.  The  same  is  true  also  of  the  lower  class  in  the 
sea-states,  especially  in  Holland.  Their  leading  motives  in 
this  feeling  were,  as  far  as  we  can  judge,  the  fear  they  had 
of  the  aristocracy  in  the  towns  and  lordships — of  the  town- 
councils  and  seignors — and  so  they  leaned  on  the  house  of 
Orange  as  their  protectors.  The  anti-Orange  party  was  not 
kept  up  by  patriotic  fears  lest  the  successors  of  William  the 
silent  might  take  away  their  liberties,  so  much  as  by  the 
desire  to  control  the  country,  to  appoint  the  offices,  as  before 
the  time  when  Phillip  II.  attempted  to  destroy  their  franchises. 
Another  characteristic  of  Dutch  politics  was  the  hegemony 
of  Holland.  The  states  could  do  nothing  without  Holland, 
while  that  leading  state,  paying  more  than  half  the  ta.xes, 
with  immense  wealth  and,  including  Zeeland,  with  all  the 
commerce  of  the  provinces,  took  an  independent  position, 
to  which  its  culture  and  the  far-sightedness  of  its  statesmen 
entitled  it.  The  union  was  full  of  faults,  among  which  the 
rule  of  unanimity  of  all  the  estates  in  war,  peace,  and  alliance, 
was  the  principal.  Its  continuance  was  due  to  war,  as  was 
its  origin.  Had  a  time  of  perpetual  peace  followed  the  truce 
of  1609  with  the  Spaniards,  it  seems  questionable  whether 
the  provinces  could  have  held  together.  It  is  worthy  of 
notice  that  the  question  of  a  stadtholder  came  back  whenever 
dangers  began  to  be  imminent  from  foreign  enemies,  and  that 


*  In  the  latter  part  of  this  sketch  I  have  chiefly  depended  on  Leo's 
history. 


CONFEDERATIONS. 


the  eastern  provinces  do  not  seem  to  have  had  much  sympa- 
thy with  Holland.  The  form  of  polity  cannot  be  called  a 
bundesstaat  in  the  strict  sense  ;  at  the  most  it  was  one  of  the 
loosest  of  the  confederacies  that  deserve  to  bear  that  name. 
The  practical  introduction  of  monarchy  in  a  mild  shape,  late 
in  its  history,  seems  not  to  be  due  to  a  tendency  towards  uni- 
ty of  power  in  the  polity,  but  to  weariness  of  useless  contests, 
and  the  decay  of  political  life  in  an  old  and  wealthy  country. 

Why  was  it,  we  may  ask,  that  the  federal  republics  of 
Federal  system  in  Switzerland  and  of  the  seven  provinces  had  so 
s^i^pro'lTnVes  different  a  destiny— the  one  developing  itself 
compared.  ^j^^  course  of  time  into  a  well-compacted 

democratic  state,  the  other  ending  in  a  monarchy.  The  an- 
swer given  by  M.  Passy  in  his  treatise  entitled,  "  des  formes 
de  gouvernement,"  p.  346,*  is  that  the  dissimilar  destiny  is 
owing  to  the  difference  of  territorial  situation.  Switzerland, 
defended  by  its  mountains  and  aloof  from  the  politics  of  other 
lands,  having  once  gained,  could  retain  the  form  of  polity 
suited  to  its  traditions  and  forms  of  social  life.  Holland,  with 
a  commerce  spread  over  the  world,  exposed  to  the  jealousies 
of  rivals  in  trade,  with  larger  powers  in  its  neighborhood,  was 
almost  of  necessity  involved  in  European  war,  "  and  at  the 
end  ranged  itself  amid  the  perils  of  invasion  and  ruin  under 
a  form  of  government  which  gave  it  a  unity  of  direction,  the 
absence  of  which  would,  without  fail,  have  been  punished  by 
reverses  more  or  less  deplorable."  And  this  tendency  towards 
a  unitary  monarchy  was  aided,  he  thinks,  by  the  presence 
of  the  Orange  family,  which  was  associated  in  unfading  re- 
membrance with  the  heroic  struggles  of  its  birth  and  early 
years  as  an  independent  state. 

All  this  may  be  admitted,  and  yet  we  cannot  concede  that 
the  whole  or  the  chief  difference  between  the  two  was  caused 
by  territorial  situation.  Holland  had  a  stronger  aristocracy 
of  wealth  and  ancient  title  than  Switzerland,  it  grew  more 
rapidly  in  wealth  and  culture,  while  the  political  interests  as 

*  Paris,  1870. 


236 


POLITICAL  SCIENCE. 


well  as  the  religious  fell  into  the  background.  The  liberties 
of  the  country  assumed,  in  the  feelings  of  the  upper  classes, 
relatively  less  importance.  Then  the  French  revolution  was 
able  to  spread  more  there  than  in  Switzerland,  owing  both  to 
the  proximity  of  France  and  to  the  greater  dissatisfaction  of 
the  masses  with  the  government  ;  and  when  its  period  had 
passed,  republican  government  was  condemned  by  history. 
The  liberties  of  both  republics  were  provincial  liberties,  and 
the  experience  of  the  Dutch  provinces — owing,  indeed,  to 
their  situation — had  shown  the  need  of  a  union  which  their 
constitution  could  not  afford.  The  Orange  family  in  one  of 
its  branches  was  still  on  hand  to  make  a  line  of  kings  out  of. 
And  the  powerful  voice  of  all  Europe  would  have  been  lifted 
up  louder  than  it  was  at  the  restoration,  if  the  country  had 
offered  a  stout  resistance  to  the  change  of  polity,  because 
republics  seemed  to  have  in  them  a  revolutionary  element. 


^  212. 

United  States  of  America. 

No  people  in  modern  times  has  been  led  to  choose  its  form 
of  government  by  a  clearer  voice  of  providence,  as  expressed 
in  its  whole  history,  than  the  people  of  the  United  States. 
The  principal  considerations  which  justify  this  assertion  and 
justify  the  right  of  our  union  to  exist,  are  chiefly  these  : 
I.  There  were  affinities  enough  in  the  colonies  to  unite 
Union  of  English  thcm  togcthcr,  and  differences  enough  to  keep 
colonics  natural.  ^j^^^^  in  the  coudition  of  Separate  states.  All, 
with  one  exception,  were  of  English  origin  ;  they  brought 
with  them  English  law  and  municipal  institutions ;  they  had 
a  common  reverence  for  the  mother  country,  and  long  had  no 
thought  of  any  more  independence  than  their  charters  gave 
them.  The  only  exception.  New  York,  became  English  by 
the  peace  of  Breda  (1667),  so  early  that  it  was  easy  to  impress 
an  English  stamp  upon  it.  On  the  other  hand,  the  differ- 
ences were  quite  as  noteworthy.    In  the  most  northern  colo- 


CONFEDERATIONS. 


nies  the  Puritan  settlements  were  begun  mainly,  in  order  to 
enjoy  religious  forms  and  convictions  in  peace.  They  showed 
the  English  self-governing  spirit  in  its  highest  degree.  Their 
colonies  were  homogeneous  from  the  first.  If  any  colonies 
had  consolidated  themselves  into  one,  it  would  have  been 
easiest  for  them  to  make  the  experiment  with  success.  In 
fact,  New  Hampshire  and  Massachusetts  were  connected  for 
some  time  together,  and  New  Haven  was  united  permanently 
with  Connecticut.  Thus  also  the  territories  and  the  province 
of  Pennsylvania  were  made  distinct  governments  in  1703,  and 
the  Carolinas  were  divided  in  1729.  But,  on  the  other  hand, 
it  was  easier  for  colonies  of  moderate  size  to  thrive  than  for 
vast  ones,  and  such  a  size,  by  rendering  long  journeys  through 
unsettled  tracts  for  justice  and  legislation  unnecessary,  made 
self-government  far  easier.  The  southern  cluster  of  colonies 
had  a  character  of  their  own,  intensified,  as  we  shall  see,  by 
their  form  of  industrial  life.  The  middle  were  so  unlike  in 
early  origin  and  settlement,  that  each  one  had  a  character  of 
its  own.  Penn's  colony  differed  greatly,  at  the  beginning 
and  onward,  from  New  York. 

Another  great  difference  lay  in  the  form  of  life  to  which 
the  diversities  of  soil,  climate  and  the  outline  of  the  coast 
called  them.  The  northern  colonies  were  shut  out  from  the 
cultivation  of  those  plants  like  cotton,  rice,  or  the  sugar-cane, 
which  could  be  produced  in  many  parts  of  the  southern 
country.  This  limitation  and  their  good  harbors  called  them 
in  part  to  commerce  and  fisheries.  They  were  destined  to 
be  a  commercial,  and  were  fitted  to  become  a  manufacturing 
people.  Their  main  distinction  from  the  southern  country, 
however,  lay  in  this — that  slavery,  though  it  penetrated  into 
all  the  colonies  and  was  allowed  in  all,  could  never  thrive  in 
the  north.  There  could  be  no  great  planters  with  troops  of 
slaves  in  this  part  of  the  colonial  territory,  while  at  the  south 
it  was  almost  necessary  that  families  of  slaves  should  be 
numerous  and  population  scattered.  The  results  of  this 
were  great.  The  north  could  hold  on  to  the  township  system, 
suggested  by  the  state  of  things  in  old  England  before  the 


238 


POLITICAL  SCIENCE. 


yeomanry  had  disappeared.  They  could  meet  together  in 
town  meetings,  and  have  village  centres  scattered  about  ; 
and  cities  could  arise  with  the  growth  of  business,  while  at 
the  other  end  of  the  English  settlements  the  county-system 
prevailed,  requiring  a  considerably  larger  district  than  a  town- 
ship, and  devised  for  judicial  purposes  rather  than  for  those 
of  religious  and  social  communion.  Town  life,  therefore, 
and  social  life  formed  the  manners  far  more  at  the  north  than 
at  the  south. 

While  slavery  thus  affected  the  forms  of  society,  it  affected 
society  also  in  its  habits  and  divisions.  At  the  north  labor 
was  always  respectable  and  the  laborer  could  become  with 
ease  a  landholder,  so  as  to  take  a  part  in  town  and  other 
government.  In  the  lands  of  slavery,  the  mass  of  farm- 
laborers  being  negroes  and  slaves,  labor  was  not  respectable 
unless  among  the  settlements  in  the  upper  country  above  the 
falls  in  the  rivers.  Yet  there  were  very  considerable  numbers 
of  white  persons  owning  small  tracts  of  land,  who  had  to 
labor  for  themselves.  The  inevitable  result  was  to  depress 
and  degrade  these  poor  whites  ;  and  the  result  of  the  whole 
mode  of  life,  which  scattered  a  few  whites  over  a  large  area, 
and  rendered  it  impolitic  if  not  unsafe  to  have  slaves  taught, 
was  to  make  a  school  system  difficult  ;  while  in  the  northern 
colonies  schools  were  spread  over  all  the  hills,  and  learning,  as 
well  as  religion,  was  a  prime  interest  of  society  and  of  politi- 
cal communities. 

2.  The  colonies  were  learning,  by  the  events  of  their  history 
Early  attempts  at  '^"'^  ^^^^  experience  of  their  institutions,  the  dis- 
confederation.  ciplinc  of  self-govcmment.  It  is  not  necessary 
here  to  repeat  what  dc  Tocqueville  and  others  had  said  of  the 
importance  of  our  institutions  in  developing  a  political  in- 
stinct and  a  self-governing  practical  power.  One  or  two 
points,  however,  need  to  be  adverted  to.  One  is  that  dangers 
and  wars  in  which  England  was  engaged  naturally  called 
forth  some  efforts  for  concerted  action.  Such  was  the  union 
of  the  four  New  England  colonies  in  1643,  which  had  been 
suggested  several  years  before,  and  was  now  actually  set  on 


CONFEDERATIONS. 


foot  by  resolutions  of  the  general  courts.  The  reasons  as- 
signed were,  among  others,  fear  of  the  savages  and  of  the 
French,  with  the  affinities  between  the  colonies.  Dr.  Holmes 
(Amer.  Annals,  i.,  270),  says  that  "the  union  subsisted  with 
some  alterations  until  1686,  and  was  acknowledged  by  the 
authorities  in  England  from  its  beginning  until  the  restoration, 
and  in  letters  from  King  Charles  II.,  notice  is  taken  of  it 
without  any  exception  to  the  establishment."  When  we 
read  in  Hutchinson's  history  of  Massachusetts  the  articles  of 
this  union,  we  are  startled  and  seem  to  see  a  project  for  a 
new  commonwealth.  It  was  a  firm  and  perpetual  league, 
offensive  and  defensive,  between  Massachusetts,  Plymouth, 
Connecticut  and  New  Haven — Aquidnick  or  Rhode  Island 
being  kept  out  by  the  ill-will  of  Massachusetts.  "  Each 
colony  was  to  retain  a  distinct  and  separate  jurisdiction,  no 
two  colonies  to  join  in  one  jurisdiction  without  the  consent 
of  the  whole,  and  no  other  colony  to  be  received  into  the 
confederacy  without  the  like  consent.  The  charges  of  all 
wars,  offensive  and  defensive,  to  be  borne  in  proportion  to 
the  male  inhabitants  between  sixteen  and  sixty  years  of  age, 
in  each  colony.  Upon  notice  of  an  invasion  from  three 
magistrates  of  any  colony  the  rest  were  bound  immediately  to 
send  aid,  Massachusetts  one  hundred,  and  each  of  the  other 
colonies  forty-five  men  :  and  if  a  greater  number  should  be 
necessary  the  commissioners  were  to  meet  and  determine 
upon  it.  Two  commissioners  from  each  government,  being 
church  members,  were  to  meet  annually  the  first  Monday  in 
September  ;  the  first  meeting  to  be  held  at  Boston,  then  at 
Hartford,  New  Haven  and  Plymouth,  and  so  yearly  in  that 
order,  saving  that  two  meetings  successively  might  be  held 
at  Boston."  Then  follow  articles  to  the  effect  that  six  com- 
missioners shall  constitute  a  majority,  that  the  commissioners 
shall  have  power  to  establish  laws  of  a  civil  nature  and  of 
general  concern  for  the  conduct  of  the  inhabitants,  relative 
to  their  behavior  towards  tlie  Indians,  to  fugitives  from  one 
colony  to  another  and  the  like  ;  declaring  that  no  coK^ny  shall 
engage  in  war  without  the  consent  of  the  whole  except  upon 


240 


POLITICAL  SCIENCE. 


a  sudden  exigency  ;  and  relating  to  extraordinary  meetings 
and  breaches  of  the  articles  of  agreement  (Hist,  of  Mass.  i., 
IT8-I20,  ed.  3).  In  1645,  the  commissioners  make  prepara- 
tions for  war  against  the  Narragansett  Indians.  In  1675,  the 
same  body  decided  to  raise  from  the  colonies  (now  three  in 
number,  New  Haven  having  been  merged  in  Connecticut), 
one  thousand  men  against  the  same  Indian  tribe — a  force 
with  which  they  ended  the  war. 

In  1754  another  union  still  more  worthy  of  notice  was  pro- 
jected by  delegates  from  six  or  seven  colonies  who  had  been 
called  to  meet  at  Albany  in  reference  to  negotiations  with 
the  Indian  tribes  called  the  Six  Nations.  It  was  proposed  to 
establish  by  leave  of  parliament  a  general  government, 
under  a  president-general  appointed  by  the  crown  of  Great 
Britain  and  a  council  of  members  chosen  by  the  colonial 
assemblies,  these  numbers  to  be  in  the  ratio  of  the  sums  paid 
by  each  colony  into  a  general  treasury.  The  president-gene- 
ral was  to  have  the  whole  executive  authority.  Legislative 
power  was  entrusted  to  the  council  and  to  this  officer,  who 
was  to  have  a  veto  on  the  passage  of  all  bills.  The  powers 
of  this  government  were  these  to  declare  war  and  peace,  to 
make  treaties  and  regulate  trade,  to  settle  new  colonies  and 
make  laws  for  them  until  they  should  be  erected  into  separate 
governments,  to  raise  troops,  build  forts,  fit  out  armed  ves- 
sels and  use  other  means  for  general  defense  ;  and  for  these 
ends  to  lay  duties,  imposts  or  taxes.  All  laws  were  to  re- 
ceive the  king's  approval,  and  to  remain  valid,  unless  disap- 
proved within  three  years.  Appointments  for  the  land  and 
sea  service  were  to  be  made  by  the  president-general  and  ap- 
proved by  the  council  ;  civil  officers  to  be  nominated  by  the 
council  and  approved  by  the  president-general.  This  plan 
was  agreed  to  by  the  delegates  at  the  convention,  except 
those  of  Connecticut,  who  opposed  it  on  account  of  the  veto 
of  the  president-general.  The  assembly  of  the  same  state 
rejected  it  for  this  clause  and  for  the  power  of  levying  taxes 
which  it  contained.  The  other  assemblies  rejected  it  as  giving 
too  much  power  to  the  president-general,  who  represented 


CONFEDERATIONS. 


241 


the  king  ;  and  the  king's  council  rejected  it,  as  giving  too 
much  power  to  representatives  of  the  people.  The  plan 
agreed  to  in  convention  was  drawn  up  by  B.  Franklin.*  It 
was  suggested  and  commended  by  the  fear  of  invasions  from 
the  French  and  Indians  during  the  war  then  apprehended. 

After  the  passage  of  the  stamp  act  in  1765  a  congress  of 
twenty-eight  delegates  from  nine  states  convened  in  New 
York  and  passed  resolutions  declaring  their  rights  as  British 
subjects,  and  their  grievances  ;  the  principal  one  of  which 
was  that  act  itself,  which  taxed  them  without  their  consent 
and  extended  the  jurisdiction  of  courts  of  admiralty.  The 
congress  agreed  on  a  petition  to  the  king  and  a  memorial  to 
each  house  of  parliament. 

These  unions  and  conventions,  together  with  the  joint 
treaties  that  several  colonies  concluded  with  the  Indians, 
show  the  political  sense  pushing  itself  out  into  a  broader  field, 
after  having  been  cultivated  in  town  communities  and  in  legis- 
lative assemblies.  It  was  no  new  idea  after  the  outbreak  of 
the  revolution  to  construct  a  confederation.  The  quarrels, 
also,  of  several  legislatures,  with  their  royal  or  proprietary 
governors,  in  colonies  where  the  governors  were  not  elected 
by  the  people,  were  also  a  preparation  for  an  independent 
political  condition  ;  so  that  when  the  parliament  passed  what 
was  considered  to  be  oppressive  and  unauthorized  acts,  the 
colonies  were  armed  with  precedents  and  analogies  drawn 
from  the  Fnglish  constitution,  as  well  as  animated  by  those 
views  of  the  right  of  revolution  and  the  powers  of  the  people 
which  were  beginning  to  spread  over  one  of  the  most  impor- 
tant countries  of  Europe,  and  had  been  sanctioned  in  one  in- 
stance, at  least,  by  the  express  action  of  the  mother  country 
herself. 

3.  When  the  revolution  began  it  was  of  the  greatest  advan- 
The " old  eonfcd-  tagc,  first,  that  thc  war  bound  the  colonics  to- 

eralion  "  and  its  dc- 

gether,  and  tlKin  that  the  old  confederation  was 
found  to  be  an  insufficient  bond. 

*Comp,  Holmes,  u.  s.,  ii.,  55,  56,  under  1754. 
VOL.11.  — 16 


242 


POLITICAL  SCIENCE. 


It  is  not  enough  for  a  people  to  form  political  unions  by- 
getting  constitutions  made  to  order,  and  by  copying  approved 
models  ;  there  must  be  something  for  national  feeling  and  a 
sense  of  unity  to  rest  upon.  The  revolutionary  war  created 
a  common  history,  of  which  no  state  needed  to  be  ashamed, 
and  prepared  the  way  for  union,  not  merely  by  the  necessities 
of  the  times  but  by  exertions  and  sufferings  in  a  common 
cause  ;  and  the  feeling  of  unity  thus  enkindled  could  over-- 
come,  for  the  time  at  least,  all  causes  of  division.  Hence  in 
more  ways  than  one  the  war  made  us  a  nation. 

Of  still  more  importance  was  it  that  the  old  confederation 
was  formed,  tried,  and  found  wanting  ;  that  it  was  found  to 
be  unsuited  for  the  times  of  peace,  which  ought  to  occupy- 
nearly  the  whole  of  a  nation's  existence. 

The  preparations  for  the  confederation  were  briefly  these  : 
after  the  passage  of  the  Boston  port  bill,  which  took  effect 
June  I,  1774,  the  colonies  regarded  parliament  as  aiming  not 
at  one  colony  only,  but  at  all  ;  and  Virginia  recommended  a 
general  congress,  which  should  meet  annually  for  the  protec- 
tion of  the  common  interests.  A  resolution  of  the  same  im- 
port came  from  Massachusetts,  and  was  at  once  seconded  by 
every  colony  except  Georgia,  from  which  colony  a  delegate 
was  sent  by  only  a  single  parish  in  March,  1775  ;  while  the 
colony  soon  afterwards  acceded  to  the  measures  of  the  more 
northern  ones.  The  first  general  or  continental  congress 
from  eleven  states  met  in  Sept.  4,  1774,  with  no  powers  ex- 
cept those  of  giving  advice,  making  protests,  and  the  like, 
or,  in  general,  of  directing  public  sentiment.  Every  colony 
represented  was  to  have  one  vote,  and  their  recommendations 
were  adopted  everywhere  except  in  the  colony  of  New  York, 
where  the  royalist  party  was  strong.  A  second  congress 
from  eleven  states,  appointed  before  the  battle  of  Lexington, 
April  19,  1775,  met  at  Philadelphia,  petitioned  the  king, 
voted  that  twenty  thousand  men  should  be  raised  and  equipped, 
appointed  Washington  commander-in-chief,  emitted  bills  of 
credit,  and  apportioned  them  among  the  twelve  united  colo- 
nies ;  and,  ere  the  year  had  expired,  resolved  to  fit  out  a 


CONFEDERATIONS. 


243 


navy,  and  established  a  system  of  posts  and  a  hospital.  The 
next  year  it  was  voted  almost  unanimously  that  the  united 
colonies  are  and  of  right  ought  to  be  free  and  independent 
states  (voted  in  June  and  to  be  proclaimed  July  4),  and  the 
states  which  had  as  yet  no  governments  adequate  to  their 
present  exigencies,  were  advised  to  establish  them.  Not  long 
after  the  capture  of  Burgoyne's  army  in  1777,  articles  of  con- 
federation and  perpetual  union  were  agreed  to  in  congress 
(Nov.  15),  which,  when  approved  by  the  several  states  in  their 
legislatures,  were  to  be  ratified  by  the  deputies  in  congress. 
Such  ratifications  were  made  by  eight  states  on  the  9th  of 
July,  1778  ;  three  more  followed  within  the  same  year,  that 
from  Delaware  came  in  1779,  and  that  from  Maryland  not 
until  March,  1781.  The  reasons  for  the  delay  of  nearly  eight 
months  before  the  first  ratifications,  and  the  much  longer  de- 
lay of  two  states,  lay  in  the  claims  of  a  number  of  states  under 
their  charters  to  jurisdiction  over  territory  reaching  to  the 
South  Sea  (or  VV^estern  Ocean)  ;  it  was  maintained  that  con- 
gress ought  to  fix  the  western  boundaries  of  the  states  pos- 
sessed of  these  vast  domains,  and  that  unoccupied  lands  ought 
to  be  the  property  of  the  whole  union,  which  had,  by  its  com- 
mon exertions,  secured  them  for  settlers  from  the  United 
States.  The  legislature  of  Maryland  having  in  January,  1781, 
withdrawn  their  objection,  the  union  was  then  complete.* 
Several  amendments  were  made  to  the  articles,  all  of  which 
were  rejected.  Those  suggested  by  New  Jersey  to  the  effect 
that  the  United  States  ought  to  have  the  power  of  regulating 
trade,  and  of  using  the  revenues  from  duties  and  customs  for 
public  purposes,  pointed  at  a  weak  spot  which  it  needed  some 
time  to  make  apparent  throughout  the  country. 

The  confederacy  established  in  this  instrument  is  called  the 
United  States  of  America,  and  the  states,  each  retaining  its 
Sov^ereignty,  freedom,  and  independence,  with  every  power 
not  expressly  delegated  to  the  United  States,  enter  into  a 
perpetual  league  for  common  defence  and  general  welfare. 


*  See  G.  T.  Curtis,  Hist,  of  tlie  Constitution,  i.,  130  ami  oiiw. 


244 


POLITICAL  SCIENCE. 


All  privileges  of  ingress  and  egress,  and  all  duties  or  imposi- 
tions in  each  state,  are  common  to  the  free  citizens  of  all  the 
states  ;  extradition  between  the  states  and  full  credit  to  judi- 
cial documents,  shall  be  everywhere  allowed.  Delegates  shall 
meet  annually  on  the  first  of  November,  not  less  than  two 
^nor  more  than  seven  from  each  state,  and  every  state,  through 
these  delegates,  shall  have  but  one  vote.  Of  course  the  vote 
of  a  state  might  be  made  null  by  disagreement  of  the  dele- 
gates of  any  single  state,  when  there  was  an  even  number  of 
them.  Every  state  was  to  pay  its  own  delegates.  The  states 
are  forbidden,  without  the  consent  of  the  United  States,  to 
hold  any  diplomatic  intercourse  with  foreign  countries,  to 
make  treaties  or  alliances  with  one  another,  to  lay  imposts 
contrary  to  any  treaty  of  congress,  to  keep  up  vessels  of  war 
in  time  of  peace,  and  maintain  forces  except  with  the  consent 
of  the  United  States,  and  in  such  numbers  as  the  United 
States  might  allow.  Nor  should  any  state  make  war  unless 
actually  invaded,  or  unless  danger  of  invasion  from  the  Indians 
should  be  imminent,  nor  grant  any  letters  of  marque  except 
against  nations  with  which  the  United  States  were  at  war,  and 
under  regulations  by  congress  established,  except  during  ex- 
posure to  attacks  from  pirates.  The  expenses  of  war  were 
to  be  defrayed  out  of  a  common  treasure  to  which  the  states 
shall  contribute  in  proportion  to  the  value  of  their  improved 
land  and  buildings,  the  taxes  to  be  laid  and  levied  by  the 
several  states  within  the  time  agreed  upon  in  congress.  To 
congress  was  to  belong  the  right  of  making  war,  peace,  alli- 
ances and  treaties,  provided  no  treaty  should  restrain  a  state 
from  imposing  the  same  duties  on  foreigners  which  should  be 
laid  on  their  own  people,  or  from  prohibiting  the  importation 
or  exportation  of  any  article  whatsoever  ;  also  the  right  of 
granting  letters  of  marque  in  time  of  peace,  of  making  rules 
concerning  capture  by  forces  of  the  United  States,  and  of  set- 
ting up  courts  of  appeal  in  all  cases  of  capture,  and  for  trial 
of  piracies  and  felonies  on  the  high  seas.  Disputes  between 
two  states  concerning  jurisdiction,  boundary,  or  for  other 
cause,  were  to  be  settled  by  a  kind  of  court  of  arbitration  es- 


CONFEDERATIONS. 


245 


tablished  for  the  occasion  by  congress  ;  and  a  similar  method 
is  provided  for,  of  settHng  disputes  concerning  the  private 
right  of  soil  under  different  grants  of  two  or  more  states. 
Congress,  also,  was  to  have  power  to  fix  the  amount  of  alloy 
and  the  value  of  coin  struck  by  their  or  the  states'  authority, 
to  regulate  trade  and  all  affairs  with  Indians  not  members  of 
the  union,  to  establish  post-offices  and  take  postages,  to  ap- 
point all  officers  in  the  land  or  sea  service  of  the  United  States, 
and  to  make  all  regulations  for  the  government  of  the  army 
and  navy.  A  committee  of  one  from  each  state  sitting  in  the 
recess  of  congress  were  to  be  clothed  with  very  extensive 
powers  for  carrying  on  the  affairs  of  the  confederation,  which 
powers  are  mentioned  at  length  ;  but  they  do  not  include  any 
of  the  powers  for  which  the  vote  of  nine  states  is  requisite. 
A  vote  of  nine  states  is  made  necessary  for  engaging  in  war, 
granting  letters  of  marque  in  time  of  peace,  making  alliances, 
coining  money  and  fixing  its  value,  ascertaining  the  necessary 
expenses,  emitting  bills  and  borrowing  money,  agreeing  on  the 
amount  of  land  and  of  sea  forces  to  be  raised,  appointing  a 
commander-  in-chief  of  the  army  and  navy.  The  congress  may 
adjourn  for  a  time,  not  longer  than  si.x  months  within  the  year, 
and  to  any  place  within  the  United  States.  Alterations  in 
the  articles  shall  not  be  made  without  a  unanimous  consent 
of  the  states,  and  the  union  is  to  be  perpetual.  This  consti- 
tution came  into  force  March  2,  1781. 

As  the  surrender  at  Yorktovvn  in  the  autumn  of  1781  put 
an  end  to  active  war,  the  confederation  did  not  have  a  long 
opportunity  of  testing  its  strength,  before  the  state  of  things 
came  on  for  which  it  was  least  fitted.  As  we  look  on  it  now 
we  find  it  full  of  defects.  There  was  no  head  or  real  execu- 
tive authority  provided  for ;  there  was  no  supreme  court  in 
any  way  adequate  to  defend  or  interpret  the  articles  ;  the 
project  of  arbitration  was  exceedingly  clumsy  ;  the  general 
expenses  had  to  be  provided  for  by  the  states,  and  there  was 
no  force  to  compel  the  states  at  any  point  to  do  their  duty. 
Suppose  a  state  sent  ambassadors  abroad,  or  retired  from  the 
union,  or  asserted  its  rights  against  another  state  by  force, 


246 


POLITICAL  SCIENXE. 


who  was  there  to  hinder  it  ?  What  security'  could  be  fur- 
nished by  a  government  without  troops  and  a  clear  power 
of  raising  an  army  that  would  be  available  for  quelling  a 
rebellion  such  as  that  of  Shay  in  Massachusetts  in  17S6  ? 
What  could  hinder  states  having  each  the  power  of  collecting 
a  revenue  by  duties,  from  interfering  with  each  other  by  bor- 
der custom-houses  ?  The  states  were  forbidden  to  lay  im- 
posts contrary-  to  treaties  with  foreign  powers,  but  what 
power  was  there  to  prevent  or  punish  transgressions  of  this 
rule  or  other  infractions  of  the  law  of  nations  ?  These  and 
other  difficulties  soon  became  apparent,  and  many  persons 
were  becoming  dissatisfied  with  the  confederation,  as  being 
an  instrument  inefficient  and  unable  long  to  preserve  the  states 
in  any  kind  of  union. 

These  feelings  were  fully  justified  as  the  United  States 
returned  to  a  condition  of  peace,  and  even  while  the  war 
lasted.  The  congress  of  the  confederation  in  fact  broke  faith 
with  the  officers  to  whom  the  continental  congress  had  voted 
half  pay  for  life  after  the  war,  on  the  ground  that  the  votes 
of  nine  states  were  necessary  for  such  a  measure,  and  that 
a  less  number  had  been  in  favor  of  it  when  it  was  past  or 
were  in  favor  of  it  now.  There  were  grave  dangers  to  be 
apprehended  from  such  a  step,  and  the  middle  course  was 
taken  of  commuting  the  half-pay  for  five  years'  pay  in  full. 
The  history  of  the  obstacles  in  the  way  of  paying  interest 
on  the  public  debt  is  a  long  and  distressing  one  ;  suffice  it  to 
say  that  neither  could  the  states  be  brought  in  sufficient 
numbers  to  give  the  congress  a  power  to  collect  duties  ;  nor, 
owing  to  the  opposition  of  New  York,  could  the  plan  of  per- 
mitting congress  to  do  this  for  twenty-five  years  be  carried  ; 
nor  were  the  states  prompt  to  pay  the  requisitions  made 
upon  them  in  order  to  meet  the  claims  of  foreign  and  domes- 
tic creditors.  In  1786,  two  states  actually  attempted  to  pay 
their  proportions  of  what  was  required  in  their  own  paper 
money,  when  these  were  due  in  specie.  State  laws  again 
interfered  with  the  obligations  assumed  in  the  treaty  of  peace, 
one  of  which  was  (  Art.  iv. )  that  creditors  should  meet  with 


CONFEDERATIONS. 


247 


no  lawful  impediment  to  the  recovery  of  debts  to  their  full 
sterling  value.  In  several  of  the  states  laws  forbade  the  re- 
covery of  the  principal  or  of  interest,  or  allowed  payments 
in  land.  All  such  laws — and  others  suited  to  the  necessity 
of  the  times  when  enacted — now  became  unlawful,  but  they 
were  not  immediately  abrogated.  Hence,  the  British  gov- 
ernment, two  years  after  the  treaty,  retained  their  western 
military  posts  upon  the  plea  that  the  treaty  was  not  observed 
by  the  other  party.  Most  of  the  states  repealed  laws  placing 
barriers  in  the  way  of  the  recovery  of  British  debts.  But 
Virginia  made  this  conditional  upon  notice  given  by  the 
governor  that  Great  Britain  had  delivered  up  the  western 
posts,  and  had  restored  the  negroes  taken  away  from  persons 
in  the  state  during  the  war,  or  made  compensation  for  their 
value.* 

It  is  instructive,  in  regard  to  the  weakness  of  the  confedera- 
tion, to  notice  the  measures  taken  by  Gi^eat  Britain  concern- 
ing the  commerce  of  the  United  States.  There  was  and 
could  be  no  treaty  of  a  commercial  nature  with  congress,  and 
the  states  could  make  none.  Commerce,  therefore,  mean- 
while, from  the  United  States  with  British  possessions  could 
be  regulated  only  by  orders  in  council.  Such  an  order, 
passed  in  1783,  excluded  from  the  British  West  Indies  all 
ships  from  the  United  States,  and  the  importation  of  fish  with 
other  articles  even  in  British  vessels.  This  measure  of  vital 
importance  was  met  by  retaliating  propositions,  and  enlarge- 
ments of  the  powers  of  congress  to  make  commercial  treaties 
were  recommended  ;  but  the  states  acted  so  slowly  and  so 
little  on  a  uniform  plan,  that  nothing  was  gained  whatever 
by  applications  to  them.  In  the  spring  of  1784,  congress 
appointed  a  commission  to  negotiate  commercial  treaties, 
expressing  in  their  resolution  for  this  purpose  "that  the 
United  States,  in  all  such  treaties  and  in  every  case  arising 
under  them,  should  be  considered  as  one  nation  upon  the  prin- 

♦Tlic  treaty  in  Art.  vii.  provides  that  with  the  army,  when  with- 
drawn, negroes  should  not  be  carried  away. 


248 


rOLITICAL  SCIENCE. 


ciples  of  the  federal  constitution."  Yet,  as  Mr.  G.  T.  Curtis 
remarks,  "  the  federal  constitution  did  not,  at  that  very  mo- 
ment, make  the  United  States  one  nation  for  this  purpose."  * 
The  years  durin<^  which  the  confederation  dragged  out  its 
New  constitution,  cspccially  thc  last  ones,  were  years  of  com- 
and  reasons  font. '  j^crcial  distrcss,  of  distrust  and  apprehension, 
of  debate  as  to  what  should  be  done  to  put  the  United  States 
on  a  better  foundation.  In  this  light  they  brought  with  them 
a  precious  experience,  leading  all  thinking  men  to  the  convic- 
tion that  some  government  with  larger  powers  was  needed, 
which,  by  offering  hope  of  relief  to  distressed  classes,  could 
secure  their  aid.  That  a  convention  should  be  called  for  a 
revision  of  the  constitution,  rather  than  that  the  congress  of 
the  confederation  should  take  this  matter  in  hand,  was  a  very 
important  step.  Had  the  other  way  of  getting  at  a  better 
form  of  government  been  pursued,  the  amendments,  proba- 
ably,  would  have  been  partial  remedies  of  defects  acknowl- 
edged by  all,  and  another  abortive  constitution  would  have 
been  given  to  the  United  States.  The  convention,  however, 
itself  was  rather  felt  to  be  necessary  than  likely  to  be  a  great 
step  forward.  Thus,  the  debates  themselves  were  of  the 
highest  value  in  fixing  the  opinions  of  the  delegates  in  favor 
of  a  government  with  powers  so  new  and  vast  that  they 
would  have  frightened  the  colonies  had  such  a  polity  been 
seriously  urged  at  the  time  when  the  old  constitution  was 
established.  The  convention  met  May  14,  1787,  agreed 
on  a  constitution  Sept.  17,  and  resolved  (October  4),  that  it 
should  be  sent  to  the  legislatures  of  the  states  in  order  to  be 
submitted  to  conventions  chosen  by  the  people.  Eleven 
states  were  present — all  but  North  CaroHna  and  Rhode  Island 
— and  twelve  had  been  represented  in  the  convention — all 
but  Rhode  Island.  When  it  came  before  thc  state  conven- 
tions it  met  with  objections  in  some  of  them.  New  York 
and  Virginia  gave  their  assent  with  the  understanding  that 

*  Hist,  of  the  Constit.,  u.  s.,  ii.,  287.  We  acknowledge  our  obli- 
gations to  this  author  for  material  aid  in  regard  to  the  defects  of  thc 
confederation. 


CONFEDERATIONS. 


249 


certain  additions  should  be  made  to  the  instrument  of  gov- 
ernment, providing  for  the  more  perfect  security  of  the  states 
and  of  individuals  against  encroachments  from  the  general 
government.  North  Carolina  came  into  the  union  late  in 
1789,  and  Rhode  Island  in  1 790.  Meanwhile,  in  March, 
1789,  the  government  had  been  organized,  and  the  chief 
magistrate  entered  upon  his  office.  Between  this  date  and 
the  date  of  the  accession  of  Rhode  Island,  a  question  of  good 
faith  and  of  constitutional  law  occurred,  owing  to  the  giving 
up  of  the  old  confederation.  The  twelfth  article  of  that 
document  declares  that  "  the  union  shall  be  perpetual  ;  nor 
shall  any  alteration  at  any  time  hereafter  be  made  in  any  of 
the  articles,  unless  such  alteration  be  agreed  to  in  a  congress 
of  the  United  States,  and  be  afterwards  confirmed  by  the 
legislature  of  every  state."  But  these  alterations,  if  they 
could  be  called  such,  were  not  agreed  to  in  congress,  nor 
were  they  confirmed  by  the  legislature  of  every  state  until 
the  smallest  of  the  states  added  its  confirmation  to  the  rest 
in  1790.  Strictly,  then,  there  was  a  violation  of  the  compact 
until  that  time.  But  the  pressure  for  a  change  was  so  great, 
the  danger  from  delay  so  serious,  that  it  seemed  necessary 
to  go  forward  ;  the  measure  itself  of  constructing  a  new  pol- 
ity by  a  convention  had  something  of  a  revolutionary  charac- 
ter ;  and  we  may  say  that  the  terms  of  the  article  in  question 
did  not  contemplate  a  new  frame  of  government,  but  a 
mending  of  an  old  one.  Thus,  ordinary  rules  were  not  appli- 
cable to  the  proceeding,  and  doubtless  the  other  states,  if 
unanimous,  would  have  been  justified  at  such  a  serious  crisis 
in  crushing  the  little  obstacle  to  perfect  union  by  war,  if 
that  had  been  the  necessary  means  for  the  end  before  them. 

^  213. 

Supposing  the  provisions  of  the  existing  constitution  to  be 
Nature  and  spirit  familiar  to  my  readers,  I  proceed  to  make  some 

of  the  U.  S.  consti-  ^  * 

tution.  It  is  a  state,  rcmarks  upon  its  nature  and  spirit. 

I.  It  creates  a  state  formed  by  a  league,  and  not  a  simple 
confederacy  of  states.    This  very  important  characteristic  is 


250 


POLITICAL  SCIENCE. 


shown  to  belong  to  it  in  various  ways.  Thus,  while  the  arti- 
cles of  the  earlier  constitution  are  called  "  articles  of  confeder- 
ation and  perpetual  union  between  the  states  of  New  Hamp- 
shire," etc.,  the  new  constitution  begins  with  "We,  the 
people  of  the  United  States — do  ordain  and  establish,"  etc. 
This  change  was  without  doubt  intentional.  Again,  the  con- 
federation was  created  by  legislatures.  It  closes  with  the 
words  "  and  whereas  it  hath  pleased  the  great  Governor  of 
the  world  to  incline  the  hearts  of  the  legislatures  we  respect- 
ively represent  in  congress  to  approve  of  and  to  authorize 
the  said  articles,"  etc.  On  the  other  hand,  the  instrument  of 
1787  was  to  be  put  to  vote  to  the  people  assembled  in  con- 
ventions in  each  state,  and  not  to  be  confirmed  by  the  legis- 
latures. 

If  we  look  at  certain  important  provisions  of  the  instru- 
ment we  shall  reach  the  same  conclusion.  Article  VI.  de- 
clares the  constitution  and  the  laws  made  in  pursuance  of  it, 
and  all  treaties  made  under  the  authority  of  the  United  States, 
to  be  the  supreme  law  of  the  land  ;  and  that  the  judges  in 
every  state  are  to  be  bound  thereby,  anything  in  the  consti- 
tution or  laws  of  any  of  the  states  to  the  contrary  notwith- 
standing. It  proceeds  also  to  prescribe  an  oath,  pledging  to 
the  support  of  the  constitution  all  members  of  the  state  le- 
gislatures, the  executive  of  the  states,  and  their  judicial 
officers.  And  this  support  must  be  given  not  to  the  constitu- 
tion, as  they  shall  interpret  it,  but  as  the  supreme  court  of 
the  United  States  shall  find  its  meaning  to  be,  in  case  any  of 
its  articles  shall  have  been  the  subject  of  their  judicial  inter- 
pretation. 

Still  more  evident  is  it  from  the  nature  of  the  powers  con- 
ferred on  the  United  States  that  it  is  something  more  than  a 
league  or  mere  confederation.  The  general  government,  or 
congress  with  the  chief  executive,  has  all  relations,  commer- 
cial and  political,  with  other  nations  in  its  hands  ;  it  has  the 
exclusive  control  of  commerce  between  the  states,  the  exclu- 
sive right  of  laying  imposts  and  duties  on  imports  and  ex- 
ports, and  on  tonnage  ;  the  exclusive  right  of  keeping  troops 


CONFEDERATIONS. 


251 


and  ships  of  war  in  time  of  peace  ;  the  sole  right  of  declaring 
war  and  of  engaging  in  it,  except  in  actual  invasion  or  immi- 
nent danger  of  invasions  of  state  territory  ;  the  right  of 
laying  and  collecting  excises  and  other  internal  taxes  ;  the 
power  to  suppress  insurrections  by  its  own  armies  or  by  call- 
ing out  the  militia  of  the  states.  It  has,  thus,  if  there  should 
be  serious  resistance  to  the  laws  or  any  movement  of  violence 
in  which  a  state  is  concerned,  the  power  to  treat  such  state 
as  in  a  condition  of  war,  to  close  its  harbors  by  a  blockading 
force,  to  stop  communications  with  it  by  the  port  officer  or  in 
any  other  way,  to  pour  troops  into  its  territory.  All  these 
are  evidently  state  powers,  so  that  the  United  States  are  the 
only  true  state,  and  its  sovereignty  the  only  true  and  emi- 
nent sovereignty.  It  is  a  great  pity  that  the  confederation 
and  the  revolution  fastened  on  us  the  name  United  States, 
although  it  expresses  a  reality;  for  it  has  ever  been  played 
false  with,  as  if  there  was  not  something  greater  and  higher 
than  the  separate  states  created  by  the  constitution.  And 
the  word  sovereignty,  which  is  used  in  the  articles  of  con- 
federation and  in  the  treaty  of  peace  of  1783,  as  a  quality 
pertaining  to  the  states,  is  no  longer  applicable  to  them  within 
the  union,  and  is  carefully  avoided  in  the  presqnt  constitution. 
It  has  "  paltered  with  us  in  a  double  sense  "  as  if  there  could 
be  two  sovereigns,  one  without  any  international  powers,  and 
many  other  properties  essential  to  a  true  state,  the  other  with 
these  in  full  tale. 

2.  It  is  a  state  formed  by  a  union  without  merging  the  ex- 
The  states  still  istencc  of  the  members   in  that  which  they 

kept  up  their  orga- 

nization.  crcatcd.    The  highest  expression  of  this  is  that 

ail  the  states,  great  and  small,  have  an  equal  representation 
in  the  senate,  chosen  by  the  states  in  their  legislatures  and 
not  by  direct  voice  of  the  people.  This  was  made  essential 
to  the  formation  of  the  constitution  by  the  small  states  ;  and 
is  confirmed  by  the  constitution  in  the  clause  of  Art.  V.  that 
"  no  state  without  its  consent  shall  be  deprived  of  its  equal 
suffrage  in  the  senate."  This  then  is  beyond  the  reach  of 
any  amendment  in  which  the  state  concerned  docs  not  con- 


252 


POLITICAL  SCIENCE. 


cur.  For  aught  that  appears,  new  states  might  have  been  re- 
ceived on  some  other  condition,  either  that  of  having  no  rep- 
resentation at  all  or  but  one  member  in  the  senate  ;  but  that 
would  have  tended  to  destroy  the  senate  itself,  which  is  the 
keystone  of  our  arch,  and  without  which  consolidation  or  di- 
vision would  be  more  to  be  feared  than  they  are  at  present. 

The  same  intention  to  continue  partial  state  independence 
is  shown — to  go  no  farther — by  the  ninth  amendment — "  the 
powers  not  delegated  to  the  United  States  by  the  constitution, 
nor  prohibited  by  it  to  the  states,  are  reserved  to  the  states 
respectively  or  to  the  people,"  where  "  delegated"  is  an  un- 
fortunate word.  This  clause  is  most  valuable  as  confining 
the  departments  of  government  strictly  within  their  spheres. 
The  expression  proltibitcd  to  the  states  points  at  what  is  a 
peculiarity  of  the  constitution — that  it  deals  with  the  states 
not  in  the  way  of  command  to  do,  but  of  prohibition  against 
doing.  Only  in  the  way  of  prohibition  is  serious  interference 
in  state  affairs  possible.  A  command — as  for  instance  one 
that  has  been  suggested  by  high  authority — that  the  states 
should  all  pass  school-laws  of  a  certain  kind,  would  be  a  most 
serious  departure  from  the  spirit  of  our  constitution. 

3.  Perhaps  the  most  unique  provision  of  the  constitution 
is  that  which  relates  to  the  supreme  court  of  the 

The  supreme  court,    t  t    •       1  t  t  1  1  /-  . 

United  States.  Here  the  weakness  of  the  con- 
federation was  manifest,  and  experience  suggested  a  remedy 
which  was  perilous,  perhaps,  but  not  as  dangerous  as  the  in- 
stitution of  an  administration  clothed  with  great  and  exten- 
sive powers.  The  court  has  power  extending  "to  all  cases 
in  law  and  equity  under  the  constitution,  the  laws  of  the 
United  States,  and  treaties  made  under  their  authority." 
Where,  therefore,  a  law  is  resisted  by  a  private  person, 
whether  acting  as  an  agent  of  a  state  or  for  himself,  the  only 
valid  plea  he  can  make  is  that  it  is  opposed  to  the  constitution. 
What  the  constitution  means  becomes  thus  a  question  which 
in  the  last  resort  the  supreme  court  must  decide.  So  also  the 
interpretations  made  by  officers  of  the  administration  in  their 
departments,  by  the  attorney-general,  or  even  by  the  prcsi- 


CONFEDERATIONS. 


dent,  may  be  resisted  and  examined  ;  and  the  laws  passed  by- 
congress  are  subject  to  the  same  ordeal.  The  mighty  efficacy 
of  the  single  clause  that  "  no  state  shall  pass  any  law  impair- 
ing the  obligation  of  contracts" — which  brings  before  the 
court  the  question  what  are  contracts,  and  whether  a  law  im- 
pairs their  obligation— has  been  already  adverted  to.  This  is 
one  of  the  great  checks  on  arbitrary  state  law  against  indi- 
viduals. Again,  the  court  has,  in  controversies  between  two 
or  more  states,  such  as  those  relating  to  ownership  of  lands, 
boundaries,  and  the  like,  a  jurisdiction  which  may  be  called 
arbitral,  answering  to  that  of  austrdgalinstaiiae  in  Germany, 
which  have  been  there  rather  desired  than  established.  Thus 
the  court  is  the  moderating  power  of  the  constitution,  and 
while  it  has  no  might,  and  may  be  opposed  by  might,  it  has 
been  able  to  carry  its  decisions  into  practice.  They  have 
been  respected  and  received,  with  scarcely  an  exception,  by 
an  influential  profession,  which  admits  the  force  of  precedent 
but  demands  reasons,  as  well  as  by  the  intelligence  of  the 
country.  We  cannot  help  believing  that  the  supreme  court 
has  saved  the  country  from  infinite  evils,  and  that  to  break  it 
down  would  be  to  dissolve  the  union. 

Two  presidents,  Jefferson  and  Jackson,  held  that  each  de- 
partment of  the  government  possessed  the  right  of  indepen- 
dent interpretation  within  its  own  sphere.  Thus  there  would 
be  three  interpreting  powers  instead  of  one,  and  every  oppo- 
site party  through  its  chief,  when  successful  in  raising  him  to 
power,  could  nullify  in  practice  the  enactments  of  prior  holders 
of  power.  Thus  also  congress,  if  they  overcame  a  veto, 
would  make  the  law  for  supreme  court  and  president,  nay,  the 
latter  might  in  some  cases  disregard  the  veto.  Such  a  view 
finds  no  support  in  the  constitution,  any  more  than  in  sound 
reason.  The  president  is  bound  hy  oath  to  support  the  con- 
stitution as  it  has  been  interpreted  by  the  court  ;  acting  only 
on  new  cases  independently  until  they  shall  be  submitted  to 
the  supreme  tribunal,  just  as  judges  in  the  states  and  members 
of  state  legislatures,  when  they  take  the  same  oath,  take  it 
with  reference  to  the  constitution  interpreted  by  that  same 


POLITICAL  SCIENCE, 


interpreting  power.  Otherwise  there  are  as  many  expounders 
and  explainers  as  there  are  judges.* 

Nor  is  there  any  serious  danger  from  this  high  prerogative. 
The  interpretation  can  be  overruled  ;  the  constitution  can  be 
altered  ;  the  supreme  court  comes  to  consist  of  new  members  ; 
the  legal  profession  through  the  country  acts  on  and  rejudges 
its  decisions.  Mr.  Calhoun,  in  his  "  Discourse  on  Govern- 
ment," contends  that  the  court  is  created  by  the  dominant 
party,  and  expresses  their  judgments.  But  as  the  court 
changes  not  with  a  change  of  party,  as  it  is  removed  almost 
wholly  from  the  influences  of  party  and  of  existing  public  offi- 
cers, as  to  a  great  extent  it  is  not  and  cannot  be  selected  from 
active  partisans  but  from  busy,  respected  lawyers,  as  it  must 
have  a  certain  fear  of  criticism  from  the  profession  which  fur- 
nished its  members  ;  the  opinion  seems  to  be  untrue  and  un- 
just. The  supreme  judges  may  have  biases.  But  did  not 
Mr.  Calhoun  have  biases  and  very  strong  ones  ? 

If  there  were  in  our  constitution  no  such  ultimate  power  of 
interpreting  the  laws  and  of  deciding  whether  new  laws  were 
consistent  with  the  fundamental  law,  there  is  reason  to  believe 
that  the  union  could  not  have  been  kept  together.  If  the 
political  chief  of  the  time  had  been  invested  with  an  equal 
power  of  interpretation,  or  a  state  had  not  been  bound  by  the 
decisions  of  the  supreme  court  of  the  union,  as  it  would  be  by 
its  own  courts  in  regard  to  its  own  constitution  and  laws,  it 
is  plain  that  there  might  have  been  no  general  law  in  force 
through  the  country  or  general  agreement  in  regard  to  the 
interpretation  of  our  most  important  document.  The  supreme 
court  is  the  anchor  of  the  United  States,  and  there  can  be 
but  one  such  anchor. 

4.  The  executive  power  of  the  United  States  is  ample  for 
,  ,    all  the  needs  that  can  arise  under  the  constitu- 

Kxecniivc  of  the 

United  sutcs.  tion,  and  is  so  contrived  as  to  give  unity  to  the 
administration.  By  the  experience  of  a  weak  government 
without  a  head,  collapsing  as  soon  as  common  danger  was 


*  Conip.  Pomeroy's  Conslit.  Law,  §  136. 


CONFEDERATIONS. 


over,  the  founders  of  the  government  were  led  to  a  govern- 
ment under  a  president  with  very  extensive  civil,  military,  and 
international  powers,  who  commands  the  army,  has  a  nega- 
tive on  laws  of  congress  when  less  than  two- thirds  have  passed 
them,  has  vast  appointing  powers  exercised  with  the  consent 
of  the  senate  or  without  asking  their  advice,  and  has  all  power 
of  advising  the  national  legislature  and  of  watching  over  the 
subordinate  officers,  as  well  as  of  removing  them  for  cause. 
No  presiding  officer  in  a  democratic  confederation  ever  had 
in  time  of  peace  such  extensive  powers  before  ;  he  holds  them 
for  four  years,  with  the  possibility  of  re-election  ;  and  since  the 
constitution  was  framed  they  have  greatly  increased  in  im- 
portance ;  indeed,  the  appointing  power  has  grown  to  many 
times  what  it  was  when  the  republic  was  young.  It  is  the 
peculiarity  of  this  power  that  it  is  personal,  not  official,  like 
that  of  an  English  sovereign,  exercised  almost  entirely  through 
the  prime  minister.  Thus,  if  the  majority  should  change  in 
the  country  and  in  congress,  he  has  an  independent  position  : 
he  has  power  enough  to  oppose  the  sentiment  in  congress 
and  in  the  country,  to  stand  in  the  highest  place  as  the  forlorn 
hope  of  his  party,  and  take  measures  to  continue  them  in  the 
possession  of  the  government.  He  is  thus  essentially  and  of 
necessity  a  man  of  a  party.  I  shall  discuss  this  position, 
given  to  an  American  president,  when  I  consider  party  and 
party  government  in  free  states.  At  present  it  may  be  well 
to  answer  the  question  whether,  under  an  officer  with  such 
high  prerogatives,  consolidation  is  not  possible  ;  whether,  as 
the  extensive  authority  of  the  consuls  at  Rome  helped  on  the 
transition  to  the  empire,  there  may  not  lie,  in  the  germ,  in 
this  high  officer  of  the  United  States,  a  future  democratic 
emperor,  the  most  hateful  of  all  forms  of  official  rule.  To 
deny  the  possibility  of  this  would  be  folly.  Any  political 
ruin  is  possible  in  the  decay  of  morality,  the  loss  of  religion 
and  the  rise  of  new  interests  unknown  to  a  state  at  its  begin- 
ning. But  here  the  states'  powers,  which  must  be  overthrown 
in  order  that  such  a  princedom  may  arise,  are  our  safety  ; 
and  at  present  there  is  no  sign  of  their  giving  way,  nor  of 


256  POLITICAL  SCIENCE. 

thoughtful  men  becoming  tired  of  them.  Another  question 
in  the  opposite  direction  is  whether  the  constitution  provides 
sufficiently  against  its  own  disintegration.  This  used  to  be 
the  string  on  which  those  pulled  who  did  not  trust  to  any- 
thing in  the  shape  of  a  confederation,  and  they  were  fortified 
in  their  opinion  by  the  history  of  the  breaking  up  of  other 
similar  governments.  The  strength  of  the  central  administra- 
tion had  never  been  fully  tested,  nor  the  feeling  in  the  states 
towards  the  union.  This  feeling  was  miscalculated  and  under- 
rated not  only  by  political  philosophers  in  Europe,  but  also 
by  the  advocates  of  nullification  in  this  country.  That  there 
should  have  been  a  powerful  party  in  one  part  of  the  union 
holding  opinions  hostile  to  the  true  sense  of  the  constitution, 
that  this  party  should  really  have  had  the  government  in  its 
hands  the  greater  part  of  half  a  century,  that  it  should  have 
conceived  that  there  would  be  no  great  struggle  in  cutting  in 
two  the  country,  shows  that  the  opinion  as  to  where  the  great- 
est danger  lay  was  not  wholly  illusive.  But  it  must  be  re- 
membered that  slavery  in  a  number  of  contiguous  states  gave 
facilities  for  combination  which  the  variety  of  interests  in  the 
northern  states  rendered  impracticable  in  that  quarter  ;  that 
the  southern  power,  although  essentially  aristocratic,  played 
with  and  governed  the  most  democratic  of  the  northern  par- 
ties ;  and  that  they  were  misled  by  the  belief  that  the  north 
would  not  try  force  to  preserve  the  union  and  to  compel  them 
to  stay  in  it.  Thus  they  were  profoundly  ignorant  of  those 
deepest  feelings  of  men  in  political  states,  which  lie  quiet  in 
the  breast  until  danger  actually  comes.  They  felt,  indeed, 
the  strength  of  the  moral  antipathy  to  slavery,  and  dreaded 
it  as  a  factor  in  future  parties,  but  they  did  not  estimate  duly 
the  strength  of  the  union  feeling,  which  had  no  chance  to 
make  itself  known.  It  was  not  the  constitution  then,  simply, 
which  called  the  north  into  armed  contest,  when  secession 
went  into  act,  but  all  the  feelings,  strong  beyond  any  one's 
estimate,  that  clustered  around  the  union  in  fond  loyalty. 
The  result  showed  the  weakness  of  the  secession  or  disinte- 
gration principle  ;  it  showed  that  the  government  was  pro- 


CONFEDERATIONS. 


257 


vided  with  all  necessary  powers  for  carrying  the  country 
through  a  most  fearful  contest.  But  it  taught  also,  that  prin- 
ciples of  allegiance  to  government  are  not  measured  by  inter- 
ests or  by  hope  and  fear  simply,  that  such  dangers  as  were 
then  brought  on  us  are  met  by  what  ordinary  politicians  do 
not  feel  and  do  not  understand.  A  constitution  is  something 
good  in  itself,  but  the  possibility  that  under  it  the  best  feel- 
ings may  be  ready  to  appear  when  they  are  needed,  is  some- 
thing better.  Here  we  go  beyond  the  line  of  political  thought 
into  a  region  which  some  politicians  hardly  visit. 

As  for  new  possibilities  of  disintegration,  we  cannot  deny 
Danger  of  disin-  them,  nor  Can  we  tell  what  new  tendencies  may 
tegration.  appear  in  the  system,  when  the  states  already 

large  in  number  shall  become  still  more  numerous.  But  the 
late  attempts  at  separation  have  shown  an  unexpected  strength 
in  the  regard  for  the  constitution  and  the  determination  to 
uphold  it.  The  great  cause  of  division,  slavery,  being  re- 
moved, the  combinations  against  the  present  order  of  things 
among  contiguous  states  can  never  arrange  themselves  with 
so  much  advantage  again.  And  there  is  a  cause  for  keeping 
the  states  together  which  nowhere  else,  it  would  seem,  has 
had  so  much  efficacy.  The  east  cannot  flourish  without  the 
west,  nor  that  without  the  east.  The  mouth  of  the  Missis- 
sippi can  never  be  left  in  the  hands  of  a  power  which  could 
oppose  the  inland  states  for  which  that  greater  river  is  the 
outlet.  The  states  on  the  Pacific  have  no  motive  to  live  by 
themselves,  nor  could  they  seek  a  divorce  from  the  eastern 
seaboard  and  from  Europe.  Family  ties,  especially  on  east- 
ern and  western  lines,  bind  the  country  together.  It  seems 
as  if  the  country  had  been  made  on  purpose  to  be  one. 

§  214. 

The  rise  and  destiny  of  the  leading  confederations  that 
f;cncr.-ii  remarks  havc  appcarcd  in  the  world's  history  show  that 
on  confederations.    ^\^Qy  Jiayc  bcguu  iu  tlic  intcrcsts  of  mutual  ])ro- 
tcction,  and  are  not  held  together  without  difficulty.  They 
arc  not  a  stage  through  which  a  nation  passes  by  natural  dc- 
VOL.  IE— 17 


258 


POLITICAL  SCIENCE. 


velopment,  nor  does  anything  show  that  a  unitary  state  can 
break  up  into  a  confederation.  A  confederation  is  a  union 
of  bodies  poHtic  that  have  certain  resemblances  and  certain 
differences,  tendencies  to  come  together  and  tendencies  to 
remain  apart.  If  they  have  a  community  of  language,  law 
and  general  civilization,  similar  political  views  and  a  similar 
experience,  together  with  interests  that  can  be  reconciled, 
they  can  form  a  close  union,  which  alone  after  a  lapse  of  time 
ensures  the  perpetuity  of  their  political  forms.  If  one  or 
more  of  these  are  wanting  or  should  in  time  come  to  be 
wanting,  a  loose  union  is  all  they  can  hope  to  form,  or  if 
they  succeed  in  forming  a  close  union,  it  will  scarcely  be  able 
to  continue.  History  shows  especially  the  dangers  attending 
any  union  where  one  member  is  vastly  greater  or  more  favor- 
ably situated  for  action  than  the  others  ;  it  cannot  fail  to 
swallow  them  up.  Something  depends  also  on  the  national 
character,  if  the  conservative  forces  of  a  union  are  to  prevail 
over  destructive  forces.  Thus  individualism,  a  want  of  def- 
erence and  of  the  spirit  of  concession,  lawless  self-asser- 
tion, must  be  an  isolating,  disruptive  force  in  confederations 
as  well  as  in  states.  In  the  former,  the  bond  of  union  is  the 
weakest  point  and  gives  way  first  before  opposing  powers  ; 
in  the  latter,  violence  in  society  is  the  great  evil,  but  cannot 
destroy  a  state,  unless  civil  confusion  opens  the  road  to  a 
conqueror  from  without. 

The  danger  of  consolidation  is  a  very  possible  one,  but  it 
supposes  either  violent  conquest  from  within  or  the  oblitera- 
tion of  differences  that  existed  before  the  union.  If  the  for- 
mer be  supposed  to  take  place,  it  must  be  due  to  great  evils, 
to  degeneracy  and  corruption,  and  the  conquest  will  be  a 
violent  irregular  relief  from  unendurable  evils  ;  if  the  latter, 
it  will  be  a  gradual,  natural  process,  a  substitution  for  more 
complicated  machinery. 

We  only  add  that  confederation  is  limited  to  states  under 
certain  constitutions.  Two  or  more  absolute  states  cannot 
enter  into  a  union  which  is  a  perpetual  limitation  of  human 
will  ;  and  the  freer  states  are,  other  things  being  equal,  the 
more  easily  do  they  coalesce. 


CHAPTER  IX. 


DEPARTMENTS  OF  GOVERNMENT  IN  A  STATE. 
§  215. 

The  political  community,  independent  and  sovereign,  can- 
Necessity  of  divi-  not  act  directly  except  when  it  meets  in  general 

sion  of  power  in  a  ,  <       ■  /•  11  1 

state.  assembly  m  a  state  of  small  area.    Jiven  then 

it  would  need  agents  to  do  the  greater  part  of  the  political 
work.  The  whole  community  cannot  be  generals  in  war,  or 
collectors  of  revenue,  or  presidents  of  courts.  If  there  is  to 
be  a  senate  together  with  an  assembly  of  the  citizens,  a  3mall 
part  only  can  belong  to  such  a  body.  Are  there  now  any  de- 
partments or  kinds  of  agency,  into  which  the  various  activities 
of  the  state  ought  to  fall  ?  The  common  division  of  powers 
has  been  into  the  executive,  legislative,  and  judicial  depart- 
ments. In  every  polity,  says  Aristotle,  there  are  three  parts 
(or  departments),  the  suitable  form  of  each  of  which  for  a 
given  polity  the  wise  lawgiver  ought  well  to  consider.  When 
these  three  departments  are  well  organized,  the  state  as  a 
whole  will  be  well  organized,  and  states  differ  from  one 
another  by  reason  of  the  difference  of  these  three  depart- 
ments. The  first  of  the  three  is  that  which  deliberates  on 
public  affairs.  The  second  is  the  body  of  magistrates,  where 
the  points  deserving  consideration  are  what  they  ought  to  be. 
over  what  they  should  have  power,  and  how  they  ought  to 
be  chosen.  The  third  is  the  judging  department.  (Pol.,  vi. 
or  iv.,  II,  I.)  He  then  proceeds  to  speak  of  these  depart- 
ments at  some  length.    (Chaps.  11-13.) 

When  a  state  spreads  over  a  large  territory,  it  is  impossi- 
ble for  the  inhabitants,  supposing  them  to  have  passed  out 
of  the  condition  of  small  self-governing  commmiities  into  that 
of  a  consolidated  body,  to  meet  together  any  longer.  Hence 


26o 


POLITICAL  SCIENCE. 


it  would  happen  (unless  some  political  device  were  found  out 
to  prevent  the  evil)  that  the  outlying  districts  would  lose 
their  political  status,  and  become  unfree.  The  state  also, 
probably,  would  suffer  in  its  constitution  from  its  size.  The 
old  general  assembly,  being  unable  to  attend  in  person  to  its 
large  duties,  would  need  to  put  power  in  the  hands  of  agents  ; 
and  these  executive  officers  might,  ere  long,  become  holders 
of  power  in  their  own  right.  Thus,  Rome  with  its  old 
organization  could  not  keep  the  empire  together  ;  either 
a  breaking  up  or  a  more  continuous  and  autocratic  adminis- 
tration would  be  a  necessity.  As  a  remedy  for  such  evils 
the  representative  system  has  grown  up  in  the  world,  sug- 
gested perhaps,  by  delegates  to  church  councils,  and  by 
deputies  from  independent  bodies  acting  together.  By  this 
great  political  contrivance  it  is  possible  for  a  large  state  to  be 
a  free  state,  for  a  popular  constitution  not  to  fall  into  the 
hands  of  the  executive  ;  not  to  speak  of  other  most  impor- 
tant advantages  which  will  presently  appear.  But  when  the 
representative  system  is  developed,  the  people  is  no  longer 
an  active  holder  of  power,  as  in  the  ecclesia  or  the  comitia  ; 
in  the  making  of  laws,  as  in  administration  and  justice,  it  has 
intrusted  direct  power  to  its  vicars.  Hence  the  greater  ne- 
cessity of  defining  and  limiting  their  power,  of  declaring  in 
constitutions  what  the  functions  of  the  several  powers  are,  in 
order  that  the  agents  may  not  dethrone  or  enslave  the  now 
inactive  political  community. 

The  inquiry  has  been  m.ade,  which  of  these  three,  the 
Which  department  exccutive,  the  legislative,  or  the  judicial  depart- 
is supreme?  mcut,  is  the  sovcrcign  or  the  principal  agent  of 

the  sovereignty  ?  In  theory  we  may  say  that  the  department 
which  lays  down  general  rules  binding  on  the  rest,  which  in 
the  few  words  of  a  law  commands  or  forbids  without  e.xcep-i 
tion  of  person  or  limit  of  time,  stands  above  the  rest  and  is 
the  truest  vicar  of  the  sovereign  community.  And  this  will 
be  more  evidently  the  position  of  the  legislative  department 
if  it  provide  for  the  wants  of  the  state,  not  by  general  legisla- 
tion, as  by  a  tax-bill  continuing  until  repealed,  but  by  laws 


DEPARTMENTS  OF  GOVERNMENT  IN  A  STATE.  261 


or  bills  which  are  valid  for  short  periods  only,  so  that  the 
department  which  has  to  spend  money  or  control  the  army 
is  kept  in  a  certain  sort  of  dependence.  So  also  at  the  com- 
mencement in  a  new  state,  unless  the  legislature  puts  the 
wheels  of  the  constitution  in  motion,  it  cannot  act.  Neither 
executive  nor  court  can  do  the  work  for  which  it  was  intended 
without  some  preparatory  legislation.  But,  practically,  the 
departments  which  have  to  do  with  special  and  particular 
actions,  are  as  truly  invested  with  the  public  sovereignty  as 
the  law-making  department.  The  connection  with  physical 
might,  through  the  command  of  armies  and  of  an  army  of 
policemen,  and  the  immediate  control  over  foreign  relations, 
are  in  the  hands  of  the  executive  ;  it  is  natural,  therefore, 
that  this  should  strike  the  eyes  as  having  the  principal  attri- 
butes of  sovereignty.  When  it  draws  also  the  other  powers 
into  its  circle,  making  laws  and  appointing  dependent  judges, 
it  is,  indeed,  the  sovereign  dc  facto.  But  when  the  three 
powers  are  divided,  it  may  happen  that  the  judiciary  which 
is  physically  the  weakest,  may,  by  a  decision  which  asserts 
and  defends  law,  show  itself  at  certain  crises  to  be  the  strong- 
est arm  of  the  state,  simply  because  of  its  moral  authority. 
The  true  opinion  then  is  that  none  of  these  powers  represents 
the  sovereign  more  than  another  ;  that  the  executive,  owing 
to  the  physical  force  which  must  be  put  into  its  hands,  is  the 
most  dangerous  and  encroaching  of  the  three  ;  that  in  reality 
neither  of  them  is  sovereign  except  by  catachresis,  so  that 
for  once  Rousseau  is  right  in  holding  that  the  political  com- 
munity never  gives  up  and  transfers  its  powers,  but  always 
remains  sovereign.  Yet  the  large  political  community  under 
a  constitution  never  acts  directly,  except  ir  the  extremes  of 
resistance  to  usurpation,  or  of  revolution,  or  when,  according 
to  its  own  provisions,  the  constitution  is  altered. 

There  is  in  theory,  as  we  have  seen,  a  distinction  and 
F.«enti.ii  tiistinc   "Gcessity  of  a  division  bctwceu  certain  depart- 

.ionofdcpanmcn,..    ^^^^^   ^j-  ^^^^^^  ^^.j^j^j^    ^j^^   ^^f^^^^  ^.j^^j^^ 

action  of  the  movements  of  the  state  depend.  The  legislative 
action  is  mainly  general  and  prospective  ;  that  of  the  judiciary 


262 


POLITICAL  SCIENCE. 


chiefly  particular,  retrospective,  and  exjolanatory  ;  that  of  the 
executive,  particular  and  obedient  to  law  and  constitution. 
Yet  nice  lines  cannot  be  drawn  between  the  three  :  thus,  legis- 
lative acts  may  apply  to  a  particular  case  only,  and  judicial 
decisions  may  set  a  precedent  for  the  future  which  practically 
will  have  the  force  of  law,  if  not  reversed.  Again,  the  con- 
fusion between  departments  that  is  seen  in  small  and  early 
societies  would  imply  intolerable  despotism  in  larger  ones  at 
a  later  period,  but  the  evil  was  small  when  in  theory  it  ap- 
pears the  greatest.  If  a  city-king  was  judge  in  chief,  priest 
and  military  commander,  and  at  the  same  time  positive  en- 
actments were  seldom  made,  our  whole  theory  of  division  of 
powers  was  violated,  yet  as  he  had  no  soldiers  but  the  citi- 
zens, as  every  decision  could  be  reviewed  by  the  entire  com- 
munity, he  had  powerful  checks  upon  him  in  the  absence  of 
all  political  checks.  In  a  more  advanced  society,  when 
practically  the  Athenian  people  were  judges  as  well  as  an 
ecclesia,  and  judges  with  a  certain  control  over  the  amount 
of  the  damages  and  penalty  in  many  cases,  it  seems  as  if  the 
culmination  of  demagogy  were  reached  ;  yet  the  political 
crimes  of  the  Athenian  people  were  less  than  those  of  many 
states  with  better  constitutions. 

The  three  powers  are  not  only  distinct,  but  in  representative. 
Departments  iiuie-  constitutioual  govcmmcnts  they  are  independent, 
they  are  all  emanations  from  the  ground-law  ; 
and  two  of  them,  the  executive  and  judiciary,  have  no,  or  at 
least  slight,  control  over  the  other  or  over  one  another,  while 
they  are  engaged  in  their  legitimate  duties.  Aristotle  (vi.  or 
iv.,  \  \,%  2)  assigns  to  the  ecclesia  the  decision  concerning 
l)eace  and  war,  making  and  breaking  of  treaties,  making  the 
laws,  pronouncing  the  penalty  of  death,  exile,  and  confisca- 
tion, and  receiving  the  accounts  of  magistrates.  We  see 
from  this  passage  what  is  plain  of  itself,  that  as  soon  as  a  rep- 
resentative legislature  takes  the  place  of  the  people  or  politi- 
cal body,  its  action  will,  of  course,  be  abridged.  In  Aristotle's 
list  of  attributes  part  of  them  would  fall,  from  sheer  inability 
to  discharge  them,  out  of  the  hands  of  the  law-making  into  the 


DEPARTMENTS  OF  GOVERNMENT  IN  A  STATE.  263 


hands  of  one  of  the  other  powers.    This  •would,  of  course,  j 
give  greater  relative  strength  to  the  executive,  and  some 
checks  or  other  would  arise,  if  a  people  were  alarmed  at  the  | 
danger  of  usurpation  or  tyranny.     The  doctrine  of  the  inde- 
pendence of  the  powers  would  be  one  such  check,  as  far  as 
public  feeling  was  concerned  ;  that  is,  the  nation  would  feel 
that  a  wrong  and  a  usurpation  was  committed  when  this  inde- 
pendence was  attacked,  and  would  the  more  readily  take  the 
part  of  the  invaded  body.    But  must  there  not  be  some  other 
checks  and  constitutional  provisions  for  securing  the  indepen- 
dence of  the  weaker  or  more  assailable  departments  ?  The 
experience  of  ancient  states  and  of  modern,  especially  within 
the  states  belonging  to  the  Anglican  race,  has  decided  that  \ 
there  must  be.    What  they  are  we  shall  see  ere  long.    We  / 
only  say  here  that  the  control  over  the  purse  and  the  sword, 
so  as  never  to  let  it  go  out  of  their  hands  for  long  periods, 
is  a  principal  one  for  the  stability  of  the  law-making  power. 
As  for  the  judiciary,  a  long  history  of  endeavors  to  keep  it  in  I 
subservience  to  the  crown  in  England,  shows  how  naturally  an  1 
executive  seeks  to  engross  or  to  recover  power,  and  the  pro- 
vision that  the  judges  should  hold  office  during  good  behavior 
was  essential  to  the  security  of  those  liberties  which  were 
gained  or  saved  in  England  by  the  downfall  of  the  Stuarts.^^^^ 
Perfect  independence,  however,  and  perfect  separation  of 
Hut  perfect  inde-  functions  arc  neither  easy  in  practice  nor  desira- 
!^'™no.S:  ble.    Thus,  a  legislature  and  a  court  ought  to 
nor  possible.    YiavQ  thc  powcr  of  arresting  for  disorders  within 
their  halls  of  session,  which  is  an  executive  office,  and  the 
former,  that  of  deciding  in  cases  of  disputed  elections,  which 
is  of  a  judicial  nature.     In  our  constitutions  the  high  powcr 
of  impeaching  any  public  office  even  up  to  the  highest,  is 
lodged  in  the  legislature,  the  lower  house  presenting,  and  the 
upper  trying,  as  a  high  court  of  impeachment.    This  was  ) 
without  doubt  copied  after  the  constitution  of  the  British  | 
parliament,  but  had  an  independent  caste  given  to  it  in  the 
general  constitution  by  confining  the  consequences  of  a  ver- 
dict against  the  accused  to  removal  from  office.    This,  again, 


264 


POLITICAL  SCIENCE. 


is  a  judicial  procedure.  In  one  or  more  of  the  colonies, 
further,  the  upper  house,  Hke  the  house  of  lords,  was  a  high 
court  of  appeals,  a  function  now  no  longer  pertaining  to  it, 
owing,  perhaps,  to  the  incompetence  of  such  bodies  to  grap- 
ple with  high  questions  of  law.  So  also,  as  in  England, 
divorce  was  granted  formerly  by  many  legislatures,  which 
thus  exercised  concurrent  power  with  the  courts,  and  the 
same  bodies  to  some  extent  had  the  pardoning  power  in  their 
hands.  What  is  more  remarkable,  the  judiciary,  as  in  England, 
and  as  the  Roman  praetor  by  his  edict,  has  a  most  important 
and 'most  useful  power  of  unfolding  existing  law,  so  as  to  ap- 
ply its  principles  to  new  cases  not  contemplated  in  the  origi- 
nal law  or  statute,  thus  approaching  near  to  the  functions  of 
a  law-making  body.  A  slighter  invasion  of  another  province 
is  seen  when  an  officer  of  government,  a  finance  minister,  for 
instance,  lays  down,  for  the  interpretation  of  the  revenue  law, 
rules  which  must  stand  until  a  private  person  chooses  to  test 
-their  validity  before  a  court.  But  the  most  remarkable  case 
of  a  blending  of  powers  is  in  the  president's  qualified  veto,  by 
which  he  overcomes  a  majority  in  the  houses  of  congress  of 
less  than  two-thirds,  and  which  has  been  a  very  living  part 
of  our  constitution  ;  while  the  analogous  power  of  the  British 
monarch  which  suggested  it  has  now  become  obsolete  through 
I  the  working  of  a  government  by  responsible  ministries.  This 
is  certainly  not  an  executive  act,  yet  it  does  not  reach  the 
positive  character  of  a  law-making  process,  but  simply  stands 
in  the  way  of  legislation.  It  is  one  of  those  checks  of  which 
the  political  wisdom  of  the  Anglican  race  has  devised  so 
many,  by  which  we  violate  theory  in  order  to  gain  a  practical 
end. 

But  is  there  not  danger  of  conflict  and  encroachment,  if 
Danger  of  con-        departments  are  equal  or  nearly  equal ;  and 
flict  of  departments.  ^^^^  ^^^^       them,  in  ordev  to  get  the  as- 

cendancy, commit  unconstitutional  acts,  or,  in  a  time  when 
party  spirit  runs  high,  strive  to  alter  the  constitution  ?  With- 
out doubt  there  is  some  danger  from  this  source.  The  great 
strife  between  Charles  I.  of  England  and  the  parliament  led 


DEPARTMENTS  OF  GOVERNMENT  IN  A  STATE.  265 


to  a  civil  war  and  to  his  execution,  yet  the  struggle  expressed 
the  grievances  of  the  country  and  the  turn  of  public  opinion 
under  a  somewhat  unsettled  constitution.  Something  deci- 
sive, therefore — some  end  of  the  struggle,  was  necessary,  if 
England  was  to  have  a  future  history  ;  and  the  actual  end 
was  surely  worth  the  struggle.  Under  a  government  by  a 
ministry,  conflicts  involving  civil  war  are  not  to  be  feared  ; 
the  majority  in  parliament  controls  purse  and  sword  ;  if  the 
monarch  was  to  take  his  own  course,  the  ministry  would  be 
impeached,  and  parliament  would  prove  strongest.  The 
great  danger  in  England  and  in  our  country — here  more  than 
there — is  from  corrupting  influence,  which  is  unavoidable 
so  long  as  public  men  are  assailable  by  corrupt  motives.  In 
the  United  States  there  can  well  be  a  contest  between  the 
president  personally,  and  the  legislature,  arising  either  from 
a  change  of  parties  during  a  presidency,  or  from  the  peculiar 
temper  of  the  chief  officer.  The  only  signal  instance  of  this 
kind  has  been  the  contest  between  Andrew  Johnson,  presi- 
dent by  the  death  of  Mr.  Lincoln,  and  the  congress — a  con- 
test which  ended  in  a  well-nigh  successful  impeachment. 
Here  the  independent  obstinacy  of  the  head  of  the  govern- 
ment created  the  difficulty.  Another  man,  less  honest  and 
less  dogged,  might  have  sought  to  bring  congress  to  his  side 
by  corrupt  means.  But  this  trial  of  our  constitution  served 
to  show  that  no  conflict  between  these  coequal  powers  can 
seriously  threaten  the  government.  For  the  president  must! 
obstruct  legislation  by  a  veto,  and  if  the  people  sustain  him,\ 
he  conquers  ;  if  otherwise,  he  must  soon  come  to  the  end 
of  his  term  of  four  years. 

Most  of  the  modern  constitutional  monarchies  are  so  framed) 
that,  if  a  conflict  comes,  the  sovereign  can  get  the  better  of/ 
the  parliament.    Having  been  made  under  a  dread  of  public* 
opinion  as  an  influence  on  public  measures,  and  by  political 
men  attached  to  the  principle  of  monarchy,  these  constitu- 
tions naturally  seek  a  support  for  monarchy  as  the  main 
moving  power  against  a  fluctuating  public  feeling.    And  ) 
there  is  still  much  of  loyalty  to  the  king  as  a  person,  as  con-  ' 


266 


POLITICAL  SCIENCE. 


tradistinguished  from  loyalty  to  the  constitution.  There 
will  be  no  little  friction  in  some  of  these  machines  sooner  or 
later. 

216. 

There  is  another  question  touching  the  division  of  powers — 
Can  the  executive  \\  hether,  namely,  those  which  we  called  execu- 

powers   be  classed  ... 

together?  tivc  or  admui istrative  can  logically  be  classed 

together  ?  Is  there  a  unity  in  the  carrying  out  of  the  laws 
possible  ?  For  instance,  is  there  any  such  relation  between 
the  war  power  and  the  finance,  that  they  ought  to  be  regarded 
as  one  or  pertaining  to  one  chief  in  the  state  ?  If  they  are 
one  in  such  a  sense  that  the  same  man  has  purse  and  sword 
in  his  hand  without  control,  that  is  the  end  of  free  govern- 
ment, unless  a  device  by  means  of  checks  prevents  the  evil 
which  the  constitution  gives  rise  to.  One  might  blame  the 
clumsy  scheme  of  a  constitutional  government  which  makes 
a  difficulty  as  if  on  purpose  to  mend  it,  did  not  the  same 
complication  and  need  of  check  run  through  man's  nature 
and  much  of  his  work?  Simplicity  and  logical  neatness  are 
not  the  good  to  be  aimed  at  in  politics,  but  freedom  and 
order,  with  props  against  the  pressure  of  time,  and  arbitrary 
will,  and  sudden  crises.  The  powers  in  their  political  exer- 
cise, as  provided  for  by  law,  may  or  may  not  be  put  ulti- 
mately in  the  hands  of  one  man  ;  whether  they  shall  or  not 
is  a  question  not  admitting  any  one  answer.  Thus  much 
may  be  said,  that  subordinate  officials  ought  to  be  confined  to 
the  exercise  of  one  kind  of  authority  ;  it  is  safer  to  restrict 
them  by  law,  rather  than  that  the  chief  executive,  as  con- 
senting to  the  acts  of  his  subordinates,  should  be  held  re- 
sponsible and  be  called  to  account  in  each  case  of  illegality. 
In  treating  of  the  executive  among  the  departments  of 
„  government,  we  must  refer  the  reader  to  what 

Executive  power    o  ' 

and  officers.  ^^jjg         j,^        scctiou  ou  tlic  fomis  of  govern- 

ment in  relation  to  monarchy,  hereditary  or  elective,  and 
constitutional.  In  regard  to  the  chief  officers  of  state,  the 
habits,  traditions,  and  laws  of  each  nation,  together  with  their 


DEPARTMENTS  OF  GOVERNMENT  IN  A  STATE.  267 


past  history,  must  decide  who  and  how  many  they  shall  be, 
by  what  tenure  they  shall  hold  their  offices,  how  much  pow- 
der shall  be  put  into  their  hands.  As  one  who  believes  that 
the  constitution  of  the  United  States  is  a  very  wise  instrument, 
because  it  expresses  just  that  which  the  States  needed,  and 
grew  out  of  the  historical  state  of  things,  I  could  not  blame 
another  nation  for  choosing  a  different  form  of  government 
more  suited  to  their  circumstances,  if  under  it  liberty  and 
justice,  order  and  security  could  flourish.  If  a  monarch  were 
one  of  the  necessary  elements,  so  let  it  be ;  we  want  no  such 
chief  magistrate,  and  could  not  have  it  if  we  wanted  it.  The 
great  point  is  to  have  a  stable  set  of  institutions  which  a 
people  are  willing  to  accept.  How  much  better  this  than  to 
be  groping  for  well-nigh  a  century  under  the  control  of  theo- 
ries, or  the  shifting  winds  of  opposing  parties,  ever  learning 
and  never  able  to  come  to  true  political  wisdom.  What  a 
satire  on  fabricated  governments  does  an  important  part  of 
modern  revolutionary  history  present  to  us — what  a  testimony 
in  favor  of  governments  that  grow  ! 

The  natural  tendency  in  nations  not  democratically  gov- 
Unity  aiui  pii.rai-  cmcd,  cspccially  if  they  have  retained  their 
ity  in  the  c-xccut.vc.  prjmcval  polity,  is  towards  one  supreme  execu- 
tive, on  whom  all  other  officers  of  administration  and  even 
the  judges  are  dependent.  And  by  dependence  we  mean 
that  these  are  not  only  appointed  by  the  head  of  the  state, 
but  salaried  by  him,  removable  at  his  pleasure,  and  in  prac- 
tice obeying  liis  orders  as  subordinates.  In  democratical 
states,  the  tendency  arising  from  the  more  direct  sovereignty 
of  the  people,  and  its  interference  in  public  affairs,  is  to  s[)lit 
up  executive  power  to  a  great  extent,  so  that  there  shall  be 
as  little  of  dependence  of  one  magistrate  upon  another  as  is 
possible.  And  to  supply  that  supervision  which  a  iiierarchy 
of  officers  in  an  absolutism  can  secure,  the  people  ap]K)ints 
boards  of  control,  abridges  terms  of  office— for  which  the 
hankering  after  office  may  be  another  cause — aiul  i)uls  into 
the  hands  of  a  senate,  or  magistrate,  or  a  private  prosecutor, 
the  power  of  calling  the  official  to  account  for  illegality  or 


268 


POLITICAL  SCIENCE. 


corruption.  Athens  was  the  most  remarkable  example  of 
this  breaking  up  of  executive  power  into  fragments.  Thus, 
the  treasurer,  the  generals,  the  archons,  the  petty  police 
magistrates,  and  a  host  of  others  were  entirely  independent 
of  one  another,  were  liable  to  be  accused,  or  required  to  pre- 
sent accounts  or  reports  to  boards  like  the  logistce  and  eiitli- 
yfii,  and  to  be  accused  before  assemblies  of  the  people. 
So,  in  aristocratic  Rome,  consuls,  praetors,  aediles,  censors, 
tribunes,  were  under  no  law  to  obey  each  other's  orders  ;  each 
class  of  magistrates  might  be  controlled  by  another  class,  but 
could  only  move  within  a  certain  tolerably  well-defined 
sphere.  This  principle  seems  almost  necessary  for  a  repub- 
lic, if  it  would  not  fall  into  the  evil  of  a  personal  government 
ending  m  a.  tyraniiis.  In  the  separate  states  of  our  Ameri- 
can system  the  same  course  is  followed.  The  governor  has 
little  appointing  or  removing  power,  and  his  supervisory 
control  consists  chiefly  in  bringing  officers  charged  with 
malfeasance  to  trial  through  the  public  i^rosecutors.  In  the 
general  government  the  president  has  a  place  and  relation 
to  all  officers  of  the  government,  except  the  judges,  which 
even  an  old  Roman  would  be  alarmed  at,  and  which  now 
constitutes  the  chief  motive,  the  central  spring  of  our  inter- 
nal politics,  as  well  as  the  chief  danger  for  our  national  purity 
and  stability. 

Together  with  the  splitting  up  of  official  duties  and  the  al- 
most entire  want  of  subordination  of  office-holders  among 
themselves,  we  find  in  a  few  states  a  duality  of  political  officers 
with  the  same  functions.  Of  this  the  Roman  constitution 
affiDrds  to  us  the  most  remarkable  examples,  which  first  occur, 
as  far  as  we  know,  after  the  fall  of  the  kings.  This  duality 
differs  from  the  plan  on  which,  in  aristocratic  politics,  execu- 
tive councils  arc  often  instituted,  where  a  majority  of  three, 
five,  or  some  larger  number,  decides  on  all  questions  within 
the  council's  competence.  The  two  Roman  consuls,  on  the 
other  hand,  had  each  separately  the  entire  power  of  their 
office,  and  were  not  bound  to  ask  each  other's  counsel.  The 
power  of  the  kings  was  not  cut  in  two  and  half  given  to  each, 


DEPARTMENTS  OF  GOVERNMENT  IN  A  STATE.  269 

• 

but  each  had  the  whole  of  it  which  belonged  to  the  office  ; 
so  that  they  could  easily  block  each  other's  proceedings  and 
obstruct  public  business.  The  two  lines  of  kings  at  Sparta 
resembled  the  consuls  in  some  respects,  and  the  principle  of 
"  collegiality,"  beginning  with  the  consuls,  was  extended  to 
other  offices,  such  as  praetors  and  censors.  What  its  origin 
was  is  not  certain.  The  two  consuls,  may  have  represented 
the  patres  majorum  and  the  patres  minorum  gentium  in  the 
senate,  or  have  stood  for  the  king  and  the  praefect  of  the  city, 
it  being  desirable  that  one  consul  should  always  be  at  home; 
but  when  the  two  annual  chief  magistrates  were  once  created, 
the  Romans  may  have  seen  in  the  duality  a  security  against  a 
tyrant.  That,  however,  does  not  appear  to  have  been  an 
original  calculation.  A  new  reason  for  two  chief  magistrates 
was  added,  after  the  plebeians  gained  the  right  of  having  one 
of  them  selected  from  their  order.  The  two  Spartan  lines  of 
kings  may  be  explained,  without  imputing  this  provision  to 
any  particular  foresight,  by  the  fact  that  two  leading  families, 
neither  of  them,  perhaps,  of  Dorian  extraction,  w-ere  united 
"  in  introducing  order  into  the  central  body  of  the  Dorian 
people.  And  afterwards,  as  Curtius  remarks,  the  fact  that 
two  dynasties  existed  side  by  side  offered  the  important  ad- 
vantage of  binding  two  powerful  parties  and  their  interests  to 
the  state,  and  of  allowing  not  only  the  Achaean  population, 
but,  according  to  a  most  probable  supposition,  the  older 
JEoUc,  to  find  themselves  represented  in  the  supreme  guidance 
of  the  state,  and  represented  with  equal  rights.  "  Moreover, 
not  only  policy  towards  the  conquered  inhabitants  led  to  this 
double  kingship,  but  it  was  a  guarantee  for  preventing,  by 
means  of  the  mutual  jealousy  of  the  two  lines,  a  tyrannical 
outstepping  of  the  royal  prerogatives."  (Hist,  of  Greece,  i., 
209  210,  Am.  cd.)  It  may  be  added  that  the  two  lines 
never  agreed  well  together.  "  The  Carthaginians,  also,  had 
two  sitffctes,  as  we  have  seen.    The  plan  of  several  concurrent 

*  Aristotle  accounts  for  the  long  continuance  of  the  .Si)artan  mon- 
archy from  (he  division  of  the  chief  power  between  two  persons,  and 
by  the  institution  of  the  cphoratc.    (Fol.,  v.  or  viii.,  y,  §  i.) 


270  POLITICAL  SCIENCE. 

» 

chief  magistrates,  with  which,  as  we  have  said,  aristocracies 
are  famihar,  was  tried  in  several  of  the  constitutions  of  revo- 
lutionary France.  A  directory  of  five  appears  in  that  of  1795. 
In  that  of  1799  three  consuls  appear  holding  for  ten  years  and 
re-eligible,  and  the  same  three  held  office  by  the  senatus  con- 
sultum  of  1802.  Thus  the  way  was  paved  for  the  empire. 
We  find  also  that  there  was  a  proposition,  made  in  the  con- 
vention for  making  our  present  constitution,  to  have  two 
officers,  which  was,  happily,  we  think,  not  approved. 

There  have  been  instances  even  of  two  sovereigns  with  dis- 
similar powers,  like  the  two  lately  existing  in  Japan — one,  the 
representative  of  the  old  sovereignty  and  the  religious  head 
of  the  nation  ;  the  other  the  principal  feudal  chieftain,  acquir- 
ing his  high  position  in  recent  times,  and  reminding  one  of 
the  mayors  of  the  palace  under  the  later  Merovingians.  We 
find  again  in  aristocratic  states  sometimes  a  number  of  equal 
executive  officers,  a  kind  of  council  without  a  head,  which 
governs  with  vigor  and  unity  so  long  as  the  aristocracy  is  not 
divided  into  factions  ;  then  one  party  generally  sides  with 
the  people  and  overturns  the  government. 

In  modern  times  the  tendency  has  been,  both  in  republics 
and  in  monarchies,  to  have  one  chief  magistrate — elected,  in 
the  former  of  these  classes  of  states,  for  a  short  term  of  years, 
and  in  the  other  (not  taking  kings  elected  for  life  into  ac- 
count, since,  with  the  fall  of  Poland,  they  have  disappeared 
from  Christian  states),  hereditary  monarchs.  The  advantages 
of  a  single  chief  are  obvious  :  he  is  able  to  bring  unity  and 
efficiency  into  his  government,  and,  being  alone,  he  or  his 
ministry  is  responsible  ;  whereas,  two  presidents  would  be  apt 
to  checkmate  one  another,  if  they  were  of  diff"erent  parties, 
and  would  be  jealous  and  rivals  if  they  were  of  the  same 
party.  How  long  their  term  of  office  ought  to  last,  and 
whether  they  should  be  re-eligible  on  the  expiration  of  office, 
if  at  all,  are  questions  to  be  settled  with  reference  to  the  po- 
litical feelings  of  the  people.  Our  constitution  gives  to  the 
president  a  term  of  four  years,  and  lays  no  restriction  on  his 
re-election  ;  but  the  example  of  Washington,  and  a  strong  feci- 


DEPARTMENTS  OF  GOVERNMENT  IN  A  STATE.  2/1 


ing,  united  with  a  wise  political  tact,  has  made  it  to  be  re-- 
o-arded  as  a  matter  of  course  that,  after  two  terms  at  most,  he 

o 

should  retire  forever  from  political  life.  Thus  he  would  have 
eight  years  of  very  great  power — more  years  than  any  Roman, 
down  to  the  end  of  the  republic,  filled  the  office  of  consul. 
This  is  a  striking  example  of  a  usage  arising  under  a  written 
constitution,  and  adding  to  it  a  special  limitation.  The  for- 
mal prohibition  of  the  re-election  of  the  president  after  four 
or  six  years  would  remove  some  of  the  evils  of  the  present 
system. 

The  chief  magistrate  who  is  not  hereditary  must  be  elected 
by  the  legislature,  or  by  direct  voice  of  the  people,  or  in 
some  other  manner.  Our  plan  is  to  appoint  electors  from 
each  state  equal  in  number  to  the  two  senators  and  the  rep- 
resentatives of  each  state,  who  at  a  prescribed  time  meet  at 
the  place  appointed,  cast  their  votes,  and  choose  some  one  to 
carry  these  to  Washington.  When  there  is  no  choice  by  a 
majority  of  votes,  the  house  of  representatives,  voting  by 
states,  has  the  power  of  electing  the  president  and  vice- 
president.  At  first  there  was  no  special  rule  as  to  which  of 
two  persons  should  have  the  higher  and  which  the  second  of 
these  offices,  but  the  rule  was  that  he  for  whom  the  largest 
number  of  votes  was  cast  should  fill  the  highest  office.  Ow- 
ing to  an  equality  of  votes  cast  by  the  electors,  the  election 
came  into  the  house  in  l8oi,  and  after  protracted  votings 
and  much  intrigue  Mr.  Jefferson  was  chosen.  That  gave  rise 
to  an  amendment  of  the  constitution,  by  which  the  two  candi- 
dates were  voted  for  to  fill  each  a  specific  office,  and  thus 'all 
difficulty  for  the  future  was  prevented. 

The  French,  at  different  times,  have  referred  the  choice  of 
Kiecuon  of  ihc  the  cliicf  magistrate  to  the  people  and  to  the 
the  people.  legislature.    Since  the  fall  of  the  second  empire, 

this  and  other  questions  relating  to  the  form  of  a  republic  have 
been  earnestly  discussed.  M.  de  Laveleye,  of  lielgium,  in 
his  essay  "  Sur  les  formes  de  gouvernement  dans  les  societes 
modcrncs,"  Paris,  1872,  chap.  34,  remarks  that  in  1S48  tiic 
president  of  the  republic,  after  the  example  of  the  United 


272 


POLITICAL  SCIENCE. 


States,  was  elected  by  universal  suffrage.  "  One  must  be 
blind,"  he  adds,  "  not  to  see  that  this  was  to  give  the  nation 
up  into  the  hands  of  a  master.  In  a  country  with  the  tradi- 
tions of  monarchy  the  president  elected  directly  by  the  people 
will  hold  in  his  hands  the  destinies  of  the  national  assembly. 
To  suppress  it  he  will  need  only  to  give  the  word  of  command. 
The  people  does  not  comprehend  any  power  that  is  not  repre- 
sented by  a  person  ;  in  their  eyes  the  impersonal  power  of  a 
deliberative  body  is  a  mere  shadow.  It  is  necessary,  then, 
that  the  president  must  be  named  by  the  parliament.  The 
election  of  the  president  by  the  people  in  the  United  States 
every  four  years  calls  forth  a  periodical  crisis  too  intense  for 
the  European  nations  to  endure.*  That  would  be  enough  to 
give  a  disgust  for  the  republican  regime.  .  .  .  Switzerland 
changes  its  president  without  attracting  notice.  Scarcely  has 
she  a  functionary  deserving  of  the  name  ;  but  while  in  Switz- 
erland the  competence  of  the  president  is  almost  a  nullity,  in 
France  it  is  universal,  immense,  unlimited.  It  is  absolutely 
necessary  for  the  parliament  to  have  a  legal  and  easy  method 
of  recalling  [/.  c,  deposing]  the  president,  since  temptations 
and  encouragements  to  usurpation  will  not  be  wanting  to 
him.  The  upper  chamber  should  have  the  power  of  removing 
him  from  his  place  on  the  demand  of  the  lower  chamber." 

M.  E.  Duvergier  d'Hauranne,  in  his  "  Rcpublique  conser- 
vatrice  "  (Paris,  1 873),  discusses  with  ability  the  same  subject 
at  some  length,  (pp.  186-204).  Some  of  his  positions  are 
that  the  relations  of  the  executive  and  legislative  powers  can- 
not be  regulated  in  an  isolated  way  on  abstract  principles  ; 
but  it  is  necessary  to  know  how  these  powers  will  be  adjusted 
to  one  another.  The  executive  power  cannot  be  constituted 
in  the  same  way  with  two  chambers  and  with  one — with  a 
chamber  renewed  in  part  at  intervals,  and  with  one  the  mem- 
bers of  which  go  out  of  office  together  ;  "  with  a  sovereign 
assembly  invested  with  powers  almost  revolutionary  and  with 

*  The  crisis  of  a  presidential  election,  and  the  feeling  then  excited, 
are  magnified  in  the  imaginations  of  tlic  European  writers  on  Amer- 
ican affairs. 


DEPARTMENTS  OF  GOVERNMENT  IN  A  STATE.  2/3 

an  assembly  of  the  ordinary  kind,  modestly  shut  up  within 
its  legal  competence."  The  different  systems  that  are  possi- 
ble must  be  examined,  must  be  accepted  or  rejected  eti  bloc, 
without  the  hope  of  escaping  from  the  common  law  and 
getting  clear  from  the  necessities  laid  on  all  known  govern- 
ments." There  are  two  systems  of  representative  govern- 
ment which  offer  themselves  as  examples  to  modern  nations 
aiming  at  free  institutions,  the  English  and  the  American. 
The  former  or  parliamentary  monarchy  leads  to  parliamentary 
omnipotence,  and  the  only  vestige  of  the  king's  ancient  sove- 
reignty is  the  right  to  dissolve  parliament  and  appeal  to  new 
elections.  If  public  opinion  is  on  his  side,  he  can  find  new 
ministers  to  aid  him,  for  it  is  respect  to  public  opinion  which 
prevents  the  tyranny  of  a  parliament  as  well  as  royal  usurpa- 
tion, and  makes  a  free  government  out  of  a  constitutional 
monarchy.  The  equilibrium  of  parliamentary  institutions 
rests  on  this  right  of  dissolution.  Remove  this  stone,  and 
you  have  nothing  but  an  incoherent,  impracticable  system 
leading  to  revolution.  Can  this  system  suit  a  republic  ?  M. 
Duvergier  thinks  not.  The  great  error  of  the  founders  of  the 
republic  of  1848  consisted,  according  to  him,  in  "  wishing  to 
make  the  office  of  president  a  species  of  republican  repre- 
sentation of  royalty,"  taking  his  position  outside  of  parlia- 
mentary strifes  ;  and  to  effect  this  it  was  necessary  that  he 
should  be  chosen  directly  by  the  people.  This  was  attributed 
at  the  time  to  personal  considerations,  but  it  could  not  be 
otherwise,  when  once  the  president  had  been  modelled  after 
a  constitutional  king.  For,  if  elected,  with  such  attributes, 
by  the  assembly,  he  could  not  avoid  becoming  the  chief  of 
a  party,  attached,  of  his  own  will  or  by  compulsion,  to  the 
majority  which  chose  him,  and  obliged  to  put  all  his  influence 
at  the  disposition  of  his  friends.  Popular  election  alone 
could  raise  the  presidential  power  to  the  height  desired.  But, 
in  accordance  with  this  power  and  position,  it  was  hardly 
possible  not  to  give  him  the  right  of  veto  and  that  of  disso- 
lution. The  first  was  given,  the  second  was  withheld  ;  and 
hence  the  constitution  of  1848  incurred  the  risk  of  preventing 
VOL.  II.  — 18 


274 


POLITICAL  SCIEN'CE. 


him  from  using  the  only  instrument  of  legal  defence  he 
could  have, — the  risk  of  organizing  civil  war  between  the  two 
powers  of  the  government  and  of  provoking  an  appeal  to 
force,  of  giving  rise  to  a  necessity  that  one  should  suppress 
the  other.  But  it  may  be  asked,  our  author  continues, 
whether  the  president  should  not  govern  by  ministers.  To 
this  he  replies  that  the  irresponsibility  of  such  an  office 
created  by  election  is  inconsistent  with  its  origin  and  nature, 
so  that  his  impotence  would  imperil  the  parliamentary  gov- 
ernment. It  is  the  hereditary  character  of  monarchy  which 
gives  rise  to  the  axiom  that  the  king  can  do  no  wrong.  An 
elected  president  represents  the  nation  as  much,  if  not  more, 
than  a  legislative  assembly — he  being  chosen  by  all,  while  the 
several  members  of  that  are  chosen  by  fractions  of  the  people. 
If  then,  being  a  representative  of  popular  sovereignty,  he  is 
reduced  to  the  condition  of  a  faineant  king,  will  he  not  be 
the  more  ready  to  burst  the  constitutional  chains  that  bind 
him  ?  "  We  know,  moreover,  by  what  very  simple  process 
the  president's  chair  turns  into  the  imperial  throne."  The 
English  system,  then,  is  not  applicable  to  a  republic.  The 
prerogatives  of  a  constitutional  king  are  at  once  insufficient 
for  the  president  of  a  republic,  and  are  dangerous  in  his  hands. 
There  is  need  of  an  intermediate  power  to  prevent  conflicts 
'between  the  legislature  and  the  president,  whose  duty  it  must 
be  to  keep  the  two  within  their  legal  bounds. 

This  the  Americans  have  sought  to  do  by  placing  the 
senate  between  the  house  of  representatives  and  the  execu- 
tive elected  by  the  nation,  armed  with  the  veto  and  govern- 
ing in  person  by  irresponsible  ministers  who  are  not  mem- 
bers of  congress.  The  power  of  impeachment  by  the  house, 
before  the  senate,  our  author  thinks,  is  not  illusory  ;  and  the 
senate  on  this  and  other  accounts  is  the  key-stone  of  the 
American  system,  answering  to  the  right  of  dissolution  in 
Grcat^ Britain.  This,  and  the  power  of  the  supreme  court  in 
guarding  and  interpreting  the  constitution,  are  sufficient  for 
securing  the  agreement  of  the  constitutional  powers  in  the 
United  States.    But  would  they  answer  the  same  purpose  in 


di:pautmexts  of  government  in  a  state.  275 

France  ?  The  author  finds  it  difficult  to  believe  this.  The 
great  and  long  struggles  in  the  United  States  between  the 
president  and  congress  "  are  endured  valiantly  by  the  Amer- 
icans, thanks  to  their  long  practice  of  political  liberty,  their 
great  experience  in  the  institutions  of  their  country,  and  their 
imperturbable  confidence  in  the  employment  of  legal  means. 
Could  we  in  France  be  involved  in  such  prolonged  strifes 
with  the  sang-froid  which  ';ne  Americans  bring  into  them  ? 
We  should  need  at  least  prompt  solutions.  Neither  system, 
then,  that  of  the  English  nor  that  of  the  Americans,  ought 
to  be  copied.  We  can  borrow  something,  but  must  net  ser- 
vilely imitate."  "  In  spite  of  the  contrary  example  of  the 
great  American  republic,  we  must  needs  renounce  the  direct 
election  of  the  president  by  the  nation,"  .  .  .  for  "  he  will 
believe  himself  superior  to  the  national  representatives,  as 
being  the  agent  of  the  nation  elected  by  universal  sufi'rage. 
And  since  we  do  not  wish  any  longer  to  confide  to  the 
country,  acting  as  a  whole,  the  election  of  the  chief  officers 
of  state,  the  legislativ^e  body  ought  to  perform  this  office.  A 
power  delegated  by  parliament  will  have  its  inconveniences 
and  its  dangers,  but  these  may  be  remedied  in  various  ways, 
and  at  all  events,  there  is  no  other  practical  way  of  securing 
the  preponderance  of  parliament." 

The  next  question  in  order  discussed  by  our  author  is 
RpRiish  raceprc-  whethcT  the  exccutivc  power  shall  be  put  into 

fcr  a  single  chief  ex-      t       i         ,  /- 

e  utive.  the  hands  of  one  or  more  persons,  of  a  presi- 

dent or  of  a  directory  like  the  body  so-called  in  France,  or- 
ganized by  the  convention,  or  like  the  Swiss  federal  council. 
His  decision  is  that  an  unstable  divided  power  is  unfit  to 
manage  the  affairs  of  a  government  centralized  like  that  of 
France,  and  finds  its  place  rather  in  a  confederation.  Its 
mobility,  weakness  and  want  of  prestige  would  make  it  soon 
fall  into  contempt.  "  Nothing  is  more  contrary  to  ourgcnius 
than  the  institution  of  an  anonymous  antl  collccti\  c  govern- 
ment."— We  may  add  that  the  English  race  has  never  tried 
this  expedient,  whether  because  the  single  head  of  the  state 
under  the  monarchy  and  the  single  governor  in  all  the  colo- 


2/6 


POLITICAL  SC1E^XE. 


nies  and  provinces  gave  the  precedent,  or  because  also  there 
■were  practical  difficulties  in  it  which  appeared  on  the  surface. 
A  committee  of  three  or  five  men,  in  the  president's  place  or 
in  that  of  a  governor,  would  command  no  respect,  would 
often  quarrel  hopelessly,  would  feel  their  responsibility  for 
executive  measures  less  than  one  man  would  feel  his,  could 
hardly  be  deposed  in  mass  for  bad  executive  measures,  and 
might  intrigue  against  one  another  for  a  new  election.  And 
how  feeble  they  would  be  in  a  crisis.""^ 

Mr.  Mill,  in  his  "  Considerations  on  Representative  Govern- 
Mr.  Mill  on  elect-  mcnt  "  (cliap.  xiv. ,  pp.  269,  2/0,  AmcT  ed.\ 

iiigchief magistrates  ,  .       .    .       ' ^ 

by  the  people.  havmg  laid  it  down  as  an  important  principle  of 
good  government  that  no  executive  functionaries  should  be 
appointed  by  popular  election,  by  the  votes  of  the  people  or 
of  their  representatives,  asks  whether  the  chief  of  the  execu- 
tive in  a  republican  government  ought  not  to  be  an  exception. 
There  is,  he  thinks,  "some  advantage  in  a  country  like 
America,  where  no  apprehension  needs  to  be  entertained  of 
a  coHp  d'etat,  in  making  the  chief  minister  constitutionally 
independent  of  the  legislative  body  and  rendering  the  two 

*  Afr.  J.  S.  Courcelle-Seneuil,  well-known  as  a  political  econoii)ist, 
makes  ihe  following  remarks  on  the  mode  of  electing  the  president 
of  a  republic  in  his  work  entitled  "L'heritage  de  la  revolution" 
(Paris,  1872),  pp.  203,  204  :  "  In  the  eyes  of  most  Frenchmen  no 
political  question  is  more  important  than  that  of  the  form  of  the 
executive  power.  In  reality,  however,  this  question  is  very  second- 
ary ;  the  important  point  is  that  the  attributes  of  this  power  be  well 
determined  and  strictly  limited.  The  executive  power  is  charged 
with  the  ap|)lication  of  the  laws  and  with  busying  itself  in  adminis- 
trative details  growing  out  of  their  api)lication.  It  is  then  natural 
and  regular  that  tliis  be  committed  to  a  person  or  persons  designated 
by  the  legislative  jjower,  in  the  form  winch  to  this  power  seems  best. 
It  is  even  prudent  not  to  determine  this  form  by  a  fixed  constitution, 
but  to  leave  this  care  to  the  different  legislatures  for  the  time  of  the 
continuance  of  each  one  of  them.  It  is  enough  to  know  that  the 
executive  power  is  constituted  by  delegation  from  the  legislature  and 
is  subordinated  to  it,  in  order  to  render  dangerous  conflicts  almost 
impossible"  [and  in  order,  we  may  add,  from  the  American  ])f)inl  ot 
view,  to  weaken  confidence  in  the  stability  and  vigor  of  the  govern- 
ment.] 


DEPARTMENTS  OF  GOVERNMENT  IN  A  STATE.  2/7 


great  branches  of  the  government,  while  equally  popular  in 
their  origin  and  in  their  responsibility,  an  efifective  check 
on  one  another."  The  plan  accords  with  the  sedulous  avoid- 
ance of  the  concentration  of  the  great  masses  of  power  in 
the  same  hands  which  marks  the  constitution  of  the  United 
States.  "  But  the  advantage' is  purchased  at  a  price  above 
all  reasonable  estimate  of  its  value."  Mr.  IMil!  thinks  it 
better  that  the  chief  magistrate  in  a  republic  should  be  ap- 
pointed avowedly,  as  the  chief  minister  in  a  constitutional 
monarchy  is  virtually,  by  the  representative  body.  For  this 
opinion  he  gives  two  reasons — first,  that  the  president  thus 
appointed  would  be  sure  to  be  a  more  eminent  man  than  one 
elected  by  the  people,  and  again,  the  great  mischief  of  uninter- 
mitted  electioneering  would  be  prevented.  "  If  a  system 
had  been  devised  to  make  party  spirit  the  ruling  principle  of 
action  in  all  public  affairs,  and  create  an  inducement  not  only 
to  make  every  question  a  party  question,  but  to  raise  ques- 
tions for  the  purpose  of  founding  parties  on  them,  it  would 
have  been  difficult  to  contrive  any  means  better  adapted  to 
the  purpose."  But  Mr.  Mill  is  not  prepared  to  admit  that 
"  at  all  times  and  places  it  would  be  desirable  to  make  the 
head  of  the  executive  so  completely  dependent  upon  the 
votes  of  a  representative  assembly  as  the  prime  minister  is  in 
England."  "  If  it  were  thought  best  to  avoid  this,  he  might 
hold  his  office  for  a  fixed  period  independent  upon  a  parlia- 
mentary vote,  which  would  be  the  American  system  minus 
the  popular  election  and  its  evils."  He  ought  to  have  also, 
Mr.  Mill  thinks,  the  power  of  dissolving  the  parliamentary 
or  legislative  body  placed  in  his  hands,  for  with  this  arm  of 
independent  action  he  never  could  be  unduly  dependent  on 
the  legislature. 

The  objection  to  our  system  which  is  here  made,  that  the 
Mr.  .Mill's  views  ^iblcst  mcu  canuot  get  into  the  presidential  chair 
examined.  j^j^^,  rcason' that  the  most  eminent  men  have 

to  encounter  local  or  personal  prejudices,  while  a  man  with- 
out antecedents,  being  without  enemies,  is  the  best  candidate 
of  the  party,  was  made  by  M.  de  Tocqueville,  and  has  real 


2/8 


POLITICAL  SCIENCE, 


weight.  When  put  in  its  rudest  form,  it  would  be  rather  that 
an  obscure,  than  that  a  less  able  man,  is  chosen  for  the  reason 
just  given.  There  is  no  desire  on  the  part  of  a  convention 
which  selects  candidates  for  a  party  to  avoid  able,  judicious, 
or  upright  men  ;  but  there  is  a  desire  to  prevent  defection  or 
disaffection  by  forbearing  to  nominate  a  foremost  man  whom 
other  party  leaders  dislike.  And  does  not  the  same  motive 
act  when  a  new  ministry  has  to  be  constituted  in  England  ? 
Have  there  not  been  men  necessary  to  a  party  who  would 
not  serve  under  a  particular  person  thought  of  as  a  prime 
minister  ?  The  evil  is  a  great  one,  I  admit,  and  is  a  conse- 
quence of  party  government  as  connected  with  popular  elec- 
tions ;  but  the  wisest  man  in  the  place  of  secretary  of  state 
or  of  the  treasury  would  have  as  wide  and  as  influential  a 
field  of  action  as  in  the  president's  chair,  so  long  as  he  could 
retain  the  president's  confidence. 

The  other  objection  of  "  unintermitted  electioneering  "  in- 
cident to  popular  elections  is  also  an  evil  ;  but  it  is  overstated, 
when  it  is  said  by  Mr.  Mill  that  "  when  the  highest  dignity 
in  the  state  is  to  be  conferred  by  popular  election  once  every 
few  years,  the  whole  of  the  intervening  time  is  spent  in  what  is 
virtually  a  canvass."  There  have  been  several  elections  when 
the  minds  of  the  people  have  been  greatly  roused  and  deeply 
anxious,  but  this  was  owing  to  the  importance  of  the  crisis, 
as  when  Mr.  Lincoln  was  canvassed  for  ;  but  it  is  remarkable 
how  soon  the  agitation  subsides.  There  are  worse  evils  than 
Mr.  Mill's  telescope  has  discovered,  attending  on  our  system 
from  the  management  of  parties,  which  we  intend  to  consider 
under  the  licad  of  party  government. 

But,  while  admitting  the  justice  of  the  criticisms  on  our 
mode  of  electing  the  chief  officer,  we  cannot  be  persuaded 
that  Mr.  Mill's  recommendations  ought  to  carry  much  weight, 
especially  as  they  have  no  experience  to  support  them.  As 
for  election  by  the  legislature,  to  which  the  French  political 
writers  incline,  because  they  have  had  unfortunate  experience 
of  national  elections  of  a  chief  magistrate,  it  is  to  be  feared 
that  it  would  be  a  source  of  great  corruption  ;  men  who 


DEPARTMENTS  OF  GOVERNMEXT  IX  A  STATE.  279 


had  votes  in  their  hands  would  bargain  for  places  for  them- 
selves or  their  friends  ;  a  system  of  intrigue  on  a  vast  scale 
would  be  initiated  which  would  have  disastrous  consequences 
— of  intrigue  not  only  between  members  of  a  legislature  and 
agents  of  candidates,  but  of  intrigue  of  politicians  desirous  of 
getting  a  place  in  the  body  which  was  to  choose  the  chief 
magistrate.  And  as  for  the  proposed  power  of  the  president 
to  dissolve  the  legislature,  few  persons,  we  imagine,  would 
hesitate  to  regard  the  exercise  of  such  a  power  as  dangerous 
in  the  extreme.  That  might  be  done  without  agitation 
where  the  head  of  the  state  held  office  for  life  ;  but  for  a 
magistrate  having  four  or  six  years  of  political  existence  to 
use  such  a  power,  when  the  legislative  body  would  go  out  of 
office  within  perhaps  a  year,  would  be  regarded  as  a  stretch 
of  authority  altogether  out  of  proportion  to  the  end  aimed 
at.  Would  Mr.  Mill  have  recommended  in  our  case  that  the 
president  should  be  empowered  to  dissolve  the  senate  also. 
If  not,  there  would  generally  be  one  chamber  opposed  to 
the  administration,  and  no  good  would  come  out  of  the  dis- 
solution. If  so,  the  country  would  be  thrown  into  the  hands 
of  the  executive  without  a  check. 

On  the  whole,  then,  whatever  might  be  best  in  some  other 
country  with  other  political  habits  and  traditions,  we  do  not 
see  how  our  system  in  this  respect  can  be  altered  for  the 
better.  The  election  takes  place  after  the  composition  of  the 
next  house  of  representatives,  if  not  ascertained,  can  be  judged 
of  with  high  probability.  It  takes  place  long  enough  before 
the  elected  magistrate  occupies  his  seat,  for  the  minds  of  the 
community  to  cool.  It  is  acceptable  to  a  party  diffused 
through  the  union.  No  person's  private  interests  except 
those  of  office-holders  depend  on  the  result. 

§  217. 

In  the  ancient  city-states  the  people  held  appointments  in 
Appointment  of  ^^^d^-    Kithcr  there  was  no  chief 

subordinate  officials,  gxecutivc  ofiRcer.  or,  if  there  wore,  he  had  lit- 
tle or  no  appointing  power.    The  people  by  election — as  in 


28o 


POLITICAL  SCIENCE. 


many  cities,  or  as  at  Athens,  in  the  case  of  some  offices  by- 
show  of  hands,  and  of  others  by  lot,  or  by  lot  following  the 
preparation  of  lists  of  eligible  citizens,  as  at  Florence — deter- 
mined who  the  officials  for  the  year  or  the  term  should  be. 
Aristotle  gives  it  as  a  mark  of  advanced  democracy  that  the 
lot  was  used  instead  oi  cheirotonia.  (vi.,  or  vii.,  i,  §  8.)  The 
Athenians  wisely  abstained  from  applying  the  lot,  as  a  univer- 
sal rule,  several  of  the  principal  functionaries  of  the  state  and 
the  extraordinary  commissions  being  exempted  from  its 
operations.  It  was  introduced,  perhaps,  to  prevent  coteries 
and  aristocratic  factions  from  carrying  their  projects  through 
magistrates  of  their  own  choosing,  and  it  found  favor,  per- 
haps, by  the  opening  which  it  made  for  the  poorer  classes 
into  political  places,  otherwise  inaccessible  to  them. 

Rome  never  drew  the  lot  for  its  officers,  and  to  a  great 
extent  kept  them  from  any  subordination  to  each  other.  In 
the  army  the  commander  could  select  some  of  the  military 
tribunes  (colonels),  but  the  state  chose  the  rest.  It  is 
remarkable  that,  although  vast  powers  were  entrusted  to 
the  leading  magistrates,  the  Romans,  by  the  number  of 
co-equal  ones,  by  the  short  term  of  office,  by  the  checks  they 
could  use  upon  one  another,  by  the  authority  of  the  senate, 
long  prevented  the  rise  of  a  tyrant  or  of  a  coalition  aiming  to 
control  the  state. 

In  the  republics  of  the  middle  ages,  elections  for  very  short 
Elections  in  mid-  pcriods,  as  fof  two,  thrcc,  or  six  months,  were 
die  ages.  made  by  the  qualified  electors,  and  sometimes 

by  very  complicated  processes.  An  approach  to  the  lot,  such 
as  it  was  at  Athens,  is  seen  in  Florence  when  the  constitution 
ran  into  the  more  democratical  channel.  (Comp.  §  i88.) 
The  Florentine  squittinio,  however,  drew  the  names  from  a 
certain  number  of  citizens,  many  being  excluded  for  different 
reasons,  and  the  management  of  it  became  extremely  dis- 
honest, so  that  the'  reigning  party  in  the  later  times  of  the 
republic  gave  office  under  this  form  to  whom  it  would.  In 
all  the  republics,  I  believe,  a  subordination  of  officials  was 
wanting  in  great  measure.    All  of  them  depended  immcdi- 


DEPARTMENTS  OF  GOVERNMENT  IN  A  STATE.        28 1 


ately  on  the  towns  themselves.  In  countries  where  kingly- 
power  became  strong,  if  the  charters  had  given  to  the  towns 
the  right  to  choose  their  mayors,  the  kings  to  some  extent 
acquired  the  power  at  length  of  nominating  them  as  well  as 
of  having  a  controlling  voice  in  appointing  the  members  of 
the  town  councils. 

In  most  modern  governments,  whether  constitutional  or 
Appointments  of  not,  tlic  cliicf  cxccutive  lias  the  appointment 

officials  in  most  mo-       ,    ,,  i        ii      i  /v-  i  i    •  i 

dern  governments,  of  all.  Or  nearly  all,  the  officers  employed  m  the 
service  of  the  state.  It  seems  highly  proper  and  even  essen- 
tial that  the  administration  properly  so  called,  the  cabinet, 
should  be  under  his  control,  both  as  it  respects  appointment 
and  removal.  The  English  monarch  exercises  this  power 
in  a  certain  subjection  to  public  opinion.  If  the  dominant 
party  insisted  that  a  certain  man  should  be  prime  minister, 
it  could  not  well  be  otherwise,  and  the  prime  minister  has  the 
composition  of  the  cabinet  in  his  hands,  yet  he  must  have 
a  certain  regard  to  the  wishes  of  the  sovereign  and  of  his 
colleagues.  The  President  of  the  United  States  chooses  his 
cabinet  subject  to  the  approval  of  the  senate,  but  can  dismiss 
them  by  his  own  free  act.  Their  number,  and  for  the  most 
part  their  functions,  their  salaries,  number  of  clerks  and  other 
particulars  are  determined  by  law.  In  constitutional  govern- 
ments where  royal  power  is  still  strong,  everything  is  in  the 
hands  of  the  sovereign,  who,  however,  will  naturally  act 
through  his  ministers. 

The  modern  practice  is,  and  in  fact  the  universal  practice 
has  been,  in  well-constituted  and  efficient  gov- 

Cabinets. 

ernments,  to  divide  the  state  work  among  the 
mini  ters  in  such  a  way  that  each  shall  have  his  department 
or  portfolio,  and  none  shall  intrude  into  another's  province. 
In  this  way  each  is  responsible  for  the  success  of  his  depart- 
ment, the  blame  for  slackness  rests  on  him,  and  if  peculations, 
betrayal  of  secrets,  employment  of  wrong  agents,  or  other 
misdeeds  occur  in  connection  with  his  department,  to  him  the 
fault  is  imputed.  The  cabinet  also  serve  alone,  or  in  connec- 
tion with  a  council,  as  the  advisers  of  the  chief  magistrate  in 


282 


POLITICAL  SCIENCE. 


all  impoi'tant  matters.  For  instance,  if  there  is  a  threatening 
of  foreign  war,  the  foreign  secretary  alone  ought  not  to  be 
consulted,  but  as  war  affects  the  whole  state,  those  who  have 
charge  of  its  several  interests  and  are  nearest  to  the  chief 
executive  officer,  ought  to  know  and  are  bound  to  take  their 
share  of  the  responsibility.  If  this  were  not  so  the  cabinet 
would  be  a  set  of  agents  doing  their  work  as  upper  clerks. 
This  would  be  the  end  of  constitutional  government,  which 
implies  not  only  that  each  shall  be  responsible  in  his  sphere, 
but  that  all  shall  be  advisers  together,  responsible  together, 
in  all  important  transactions. 

The  number  of  ministers  and  apportionment  of  work  are 
subject  to  no  rule,  but  depend  on  the  peculiar  interests  and 
constitution  of  each  particular  country,  which  will  assign  more 
business  to  one  department  and  less  to  another  than  the  same 
department  would  have  among  its  neighbors.  The  technical 
division  into  civil,  military,  finance,  judicial,  and  police  made 
by  some  writers  of  the  last  age,  besides  being  untenable  in 
itself  as  putting  the  judiciary  where  it  does  not  belong,  and 
grouping  business  of  several  different  kinds  under  police,  is 
in  practice  wholly  untenable.  Foreign  affairs,  military  and 
finance,  will  each  demand  a  chief  of  department.  Whether 
the  navy  should  be  under  a  separate  chief  will  depend  on  the 
importance  of  this  interest.  Some  states  have  a  chief  of 
police  coequal  with  the  other  great  officers  of  state,  but  the 
importance  of  this  department  is  a  sign  of  a  bad  constitution. 
The  business  of  education,  of  carrying  the  mails,  of  protecting 
religion,  have  been  all  of  them  e.xalted  into  departments  in 
various  countries.  There  ought  also  to  be  law  officers  who 
hold  confidential  communication  with  the  departments,  and 
one  at  least  with  the  cabinet,  as  an  adviser  and  agent  in  pub- 
lic prosecutions.* 

*  The  cabinets  of  modern  European  states  consist  of  the  ministers 
placed  over  the  district  departments,  besides  wliom  there  may  be  a 
privy  council.  The  number  of  ministers  composing  a  cabinet  varies 
from  six  to  ten.  Tlius  in  France  we  find  ministers  of  foreign  affairs, 
of  justice,  of  the  interior,  finance,  war,  tlie  navy,  public  instruction; 


DEPARTMENTS  OF  GOVERNMENT  IN  A  STATE.  283 


As  a  great  number  of  chiefs  of  bureaus  and  clerks  are 
necessary  for  the  transaction  of  business,  a  responsible  minis- 
ter ought  to  have  power  to  decide  who  his  own  subordinates 
shall  be,  rather  than  be  governed  by  the  chief  magistrate  in 
this  respect.  In  dismissions  from  office  also  the  most  respon- 
sible persons  should  be  invested  with  sufficient  authority. 
The  habit  of  turning  out  of  office  for  party  reasons  a  com- 
Turning  subordi-  P^tcut  aud  faitliful  iufcrior  officer,  although  it 
nates  out  of  office,  m^y  not  be  possiblc  entirely  to  prevent  such  an 
exercise  of  power,  cannot  be  too  severely  condemned,  as  a 
general  practice.  And  here  we  come  to  one  of  the  most 
serious  evils  in  the  practical  workings  of  those  free  govern- 
ments where  party  spirit  is  the  principal  driving-wheel  in 


of  religious  affairs  {cu/tes)  and  the  fine  arts,  of  agriculture  and  com- 
merce, and  of  public  works.  Italy  has  nine  ministers  witii  nearly  the 
same  functions,  in  the  Prussian  cabinet  there  is  no  minister  for  the 
navy  ;  agriculture  gives  title  to  a  minister,  commerce  with  uidustry 
and  tlie  public  works  to  another,  and  ecclesiastical  affairs  with  pub- 
lic instruction  and  medical  affairs,  to  another.  Russia,  again,  with  a 
grand  council,  chancery,  and  senate,  has  a  central  administration  to 
which  belong  ten  ministers,  and  of  these  the  ministry  of  the  court, 
that  of  the  domains,  that  of  ways  and  communications,  are  unlike 
the  others  spoken  of  already.  Great  Britain  has  no  exact  distribu- 
tion of  offices  in  the  cabinet.  The  first  lord  of  the  treasury  and  the 
chancellor  of  the  exclie(]uer — offices  sometimes  committed  to  the 
same  person — tlie  home,  foreign  and  colonial  secretaries,  tiie  heads 
of  the  boards  of  trade,  of  control  and  of  the  admiralty,  with  the  posl- 
niastcr  general,  the  i)resident  of  the  council,  the  lord  chancellor,  and 
the  secretary  for  India,  with  one  or  two  others,  generally  make  up 
the  cabinet ;  but  practical  considerations  may  a(id  to  or  take  from  the 
ministers.  The  chancellor  of  the  excheepier  or  the  first  lord  of  the 
treasury  is  generally  the  premier.  Our  cabinet  in  the  United  States 
is  made  up  of  the  secretaries  of  state,  the  treasury,  war,  the  navy, 
and  the  interior,  with  the  postmaster  and  attorney  general.  The 
secretary  of  the  interior  is  a  modern  addition.  It  is  seen  from  this 
diversity  that  nothing  but  practical  considerations  decides  how  many 
and  what  officers  shall  belong  to  a  cabinet.  It  seems  to  be  impor- 
tant not  only  that  ih-  great  interests  of  a  country  with  the  relations 
of  tlie  government  to  the  laws  and  constitution  should  be  represented, 
but  that  cabinets  should  be  large  enough  to  be  able  to  bear  respon- 
hibllily  before  the  countiy,  and  to  carry  with  them  a  great  weight  of 
authority. 


284 


POLITICAL  SCIENCE. 


public  affairs.  We  are  obliged  to  illustrate  it  by  that  which 
is  of  constant  occurrence  in  the  United  States.  For  some 
time  after  the  present  government  began,  it  is  believed  that 
inferior  offices  were  never  given  or  taken  away  on  account 
of  party  differences.  But,  as  time  went  on,  it  became  evident 
that  the  spirit  of  party  was  destined  to  control  the  general 
government  and  that  of  the  states,  more  and  more  ;  those 
persons  who  had  been  actively  serviceable  to  a  party  began 
to  think  that  they  had  a  right  to  a  reward  from  the  party  ; 
and  as  no  other  reward  on  a  great  scale  was  possible  besides 
the  emoluments  and  honors  of  office  bestowed  on  them,  or  at 
their  request  on  their  friends,  there  must  be,  in  a  revolution 
of  parties,  a  general  displacement  and  reappointment,  so  far 
as  the  offices  were  worth  having.  Meanwhile,  with  the  rapid 
growth  of  the  country,  the  number  of  offices  grew  immensely, 
and  with  the  feeling  that  office  was  the  reward  of  party  servi- 
ces, the  successful  candidates  for  congress  everywhere  were 
appealed  to  by  those  who  had  helped  to  put  them  in  their 
places,  for  the  payment  of  their  wages.  These,  in  turn,  soli- 
cited the  chief  magistrate  at  Washington  and  the  heads  of 
departments,  for  their  creatures,  and  it  began  to  be  thought 
and  believed  that  every  member  of  the  national  legislature 
had  a  right  to  insist  on  being,  within  his  district,  an  almoner 
of  the  government.  To  these  claims  every  recent  adminis- 
tration has  been  obliged  more  or  less  to  yield.  The  attempt 
to  introduce  a  system  of  civil  service  based  on  competence 
and  character,  has  ignominiously  failed.  The  country  and  the 
government  cannot,  without  extreme  difficulty,  get  out  of 
this  rut  of  corrupt  political  bargaining  ;  the  best  nominations 
must  often  be  defeated;  men  otherwise  woithy  have  to  be 
agents  for  the  reward  by  office  of  those  whom  they  despise ; 
independence  and  personal  honor  are  gradually  driven  out 
of  politics.  The  whole  business  is  inconceivably  disgusting, 
it  is  believed,  to  many,  who  know  it  best  but  are  forced  along 
against  their  will  into  appointing  or  recommending  persons 
in  whom  they  do  not  confide.  In  the  states  the  appointing 
power  is  small,  but  here  elections  being  in  the  hands  of  cau- 


DEPARTMENTS  OF  GOVERNMENT  IN  A^STATE. 


2S5 


cuses  and  conventions,  these  are  manipulated  so  as  to  reward 
those  who  flave  worked  hard  for  the  party.  It  will  appear, 
when  we  come  to  speak  of  parties  in  free  governments  more 
at  large,  what  a  great  evil  thus  hinges  on  the  power  of  the 
administration  over  inferior  appointments,  and  how  many 
evils,  political  and  moral,  follow  in  its  train.  At  present,  we 
ask  whether  a  cure  is  possible  ?  The  constitution  itself 
fastens  the  evil  upon  us,  so  long  as  the  power  of  removal  is 
uncontrolled.  If  a  president  has  the  best  intentions  to  bring 
up  the  civil  service,  the  next  successor  or  his  cabinet  can 
make  wholesale  removals,  and  the  worth  of  the  incumbent 
will  not  protect  him  if  the  office  is  worth  having.  A  good 
system,  which  we  fear  can  never  be  entirely  carried  out, 
would  embrace  these  among  other  provisions.  (See  §  273, 
on  parties  in  the  United  States.) 

1.  The  cabinet  officers,  their  chiefs  of  bureaus,  the  repre- 
Right  rules  for  sentativcs  of  the  country  in  foreign  lands,  some 

civu  service.  ^.j^g  leading  custom-house  officers  and  post- 

masters may  properly  belong  to  the  victorious  party. 

2.  The  immense  multitude  of  postmasters  in  smaller  places 
may  well  be  elected  by  the  communities  for  whose  good  they 
are  instituted,  the  people  of  the  place  giving  security  to  the 
government  for  the  faithful  performance  of  their  duties. 
Although  they  are  a  division  of  the  army  of  public  officers, 
they  have  a  local  character,  and  may  be  treated  as  other  local 
officers  are  treated. 

3.  The  inferior  officers  of  customs,  and  others  whose  duties 
are  of  a  permanent  character,  ought  to  hold  office  during  good 
behavior. 

4.  Government  clerks,  consuls  and  consular  agents,  perhaps 
also  the  inferior  diplomatic  officials,  may  receive  an  appoint- 
ment on  their  first  entering  into  the  service  of  government, 
subject  to  their  sustaining  an  examination  satisfactory  to  a 
certain  board.  If  they  .show  themselves  to  be  able  and  trust- 
worthy they  ought  to  be  irfvested  with  the  office,  and  may  be 
promoted  without  examination,  but  not  removed  so  long  as 
they  are  faithful  and  competent. 


286 


POLITICAL  SCIENCE. 


5.  The  power  of  removal  must  not  be  taken  away  from  the 
government,  but  it  must  be  based  on  sufficient  grounds,  and 
the  person  so  removed  may,  if  he  demands  it,  have  a  trial  by 
which  his  case  shall  finally  be  determined. 

6.  No  petition  to  the  president  or  a  cabinet  officer  for  the 
appointment  of  any  one  whatever  to  any  office  shall  be  pre- 
sented by  any  member  of  the  national  legislature,  or  by  any 
other  person  except  in  writing,  and  with  his  testimony  to  the 
moral  character  and  ability  of  his  nominee. 

In  parliamentary  governments  a  considerable  evil  arises 
Frequent  changes  ffom  frequent  changes  of  miuistcrs.    There  have 
of  ministers.  bccn  in  England  since  1 830  fifteen  or  sixteen 

different  cabinets.  It  is  impossible  that  many  projects,  on 
which  great  care  had  been  bestowed,  should  not  have  fallen 
through,  and  the  progress  of  the  country  in  some  important 
respects  considerably  retarded.  It  has  been  proposed,  in  or- 
der to  remedy  this  evil,  that  some  of  the  ministers  should  be 
elected  by  the  legislative  chambers  on  the  basis  of  not  retiring 
with  the  rest  of  the  cabinet,  and  with  a  certain  fixed  term  of 
office.  England,  it  is  said,  cannot  reorganize  her  army  be- 
cause there  is  no  steady  plan  that  can  have  a  number  of  years 
in  which  to  be  matured.  MM.  Guizot  and  Duruy  in  France 
began  important  reforms  in  the  department  of  instruction,  but 
left  their  posts  without  bringing  anything  to  a  final  issue.  It 
is  shown  by  experience  that  a  good  minister,  sustained  by  an 
enlightened  despot,  can  effect  much  more  than  an  equally 
able  man,  whose  place  depends  upon  the  majority  in  a  legis- 
lative assembly.  And  in  the  United  States,  where  the  cabi- 
net officers  are  in  no  way  responsible  to  the  houses  of  con- 
gress, a  power  of  free,  continuous  action  is  within  their  reach 
which  they  could  not  have,  if  they  were  liable  to  be  turned 
out  at  every  change  of  public  opinion.  Moreover,  if  they 
hold  such  relations  to  the  legislature  they  ought  to  be  mem- 
bers of  it,  or  at  least  to  be  able  to  appear  before  it  and  defend 
the  administration  against  their  adversaries.  All  this  is  true, 
but  we  see  no  prevailing  reason  for  such  an  innovation.  The 
point  is  to  be  settled  by  weighing  the  advantages  and  evils 


DEPARTMENTS  OF  GOVERNMENT  IN  A  STATE.  287 


of  the  two  plans  against  one  another.  Our  system  of  bring- 
ing the  president  into  communication  with  the  national  legis- 
lature by  messages,  and  of  not  representing  him  there  by  the 
presence  and  voices  of  the  heads  of  departments,  has  serious 
evils  attending  it,  among  which,  the  fact  is  not  the  least,  that 
it  is  possible  for  a  feeble  man  to  hold  his  place  in  the  cabinet, 
while  confined  to  his  official  duties,  when  he  would  sink 
into  disrepute  if  not  able  to  stand  the  brunt  of  opposition 
in  defending  his  measures  before  congress.  But  the  plan  of 
having  two  kinds  of  ministers — some,  members  of  the  official 
body  and  champions  for  their  colleagues,  others,  men  of  rank, 
chosen  by  the  legislature  and  holding  office  for  a  time  with- 
out close  connection  with  the  reigning  party,  seems  to  be  still 
worse.  How  could  there  be  unity  in  a  cabinet  under  such 
a  system  ?  Would  it  not  take  away  from  the  chief  executive 
officer  a  part  of  his  necessary  influence  ?  An  author  who  ad- 
vocates this  gives  as  instances  of  the  permanent  part  of  the 
ministry  the  chiefs  in  the  departments  of  war,  public  instruc- 
tion and  public  works.  The  first  of  these  seems  to  be  emi- 
nently a  cabinet  or  party  officer,  and  he  is  one  who,  if  not 
with  the  administration,  might  do  serious  harm  if  he  disap- 
proved of  a  war  which  they  favored.* 

In  the  ancient  city-states  the  assembled  people  in  the  law- 
Legisiative  de-        meeting  kept  the  law-making  power  in  their 
partmcnt.  hands,  and  yet  sometimes  wisely  put  limi- 

tations upon  their  capacity  of  proceeding  to  the  act  of  legis- 
lation without  preparatory  advice.  Thus  at  Athens  a  />ro- 
boulcuvia  of  the  senate  of  five  hundred  was  necessary  before 
an  act  relating  to  something  special — a  psephisma — could  be 
passed  ;  and  if  a  law  (a  nomos)  were  to  be  altered,  or  a  new 
one  introduced,  it  was  necessary,  and  indeed  was  one  of  the 

*  See  Laveleye's  essay  before  cited,  chap,  xxxvi.  It  is  quite  possi- 
ble to  take  away  much  of  the  patronage  of  the  government,  which 
I.aveleye  justly  regards  as  dangerous,  without  doing  what  might  bring 
anarchy  into  it.  For  instance,  if  i)»blic  instruction  must  be  sui)crin- 
lended  by  government  functionaries,  might  not  every  municipahty  or 
school  district  elect  its  own  committee  for  local  purposes  ? 


288 


POLITICAL  SCIENCE. 


few  provisions  of  what  we  should  call  the  Athenian  constitu- 
tion, that  a  large  committee  of  law-makers  {iiouiotlictce) 
should  examine  it,  that  it  should  be  put  on  trial  before 
them,  so  to  speak,  and  then  first  be  submitted  to  the  assem- 
bly. At  Rome  the  senate,  besides  other  powers,  could  pass 
decrees  relating  to  various  parts  of  the  administration,  which 
answered  to  some  of  the  business  that  now  comes  before 
legislatures.  Yet  a  rogation  or  law  proper,  so  called  from 
the  question  put  to  the  people  in  the  comitia  by  the  presiding 
officer  whether  they  would  accept  of  a  law,  was  outside  of 
the  senate's  competence.  In  order  to  come  before  the  co- 
mitia the  project  of  a  law  needed  to  be  announced  before- 
hand, but  the  same  comitia  of  the  people  before  which  it  first 
came  could  make  it  become  a  law,  and  the  senate  had  no 
authority  to  prevent  its  passage.  The  checks  to  hasty  legis- 
lation lay  in  the  arbitrary  power  of  the  presiding  officer  to 
retard  the  passage  of  a  law,  to  refuse  to  put  a  vote,  and  to 
prorogue  the  assembly  re  iiifcctd;  in  the  intcrcessio  of  a 
tribune  and  in  the  influence  of  the  senate.  When  the 
people's  power  passed  over  to  the  emperors  the  general  rule 
was  that  qiiod  priiicipi  placuit  legis  Jiabet  vigor  cm,  but  th.e 
senate  also,  subject  to  his  approval,  could  pass  acts  which  were 
binding  as  laws,  and  he  was  practically  checked  in  the  exercise 
of  his  law-making  power  by  the  learned  lawyers  who  belonged 
to  the  consistory  and  framed  his  rescripts.  In  the  same  way 
substantially  despots  without  parliaments  have  since  man- 
aged. 

The  original  type  of  the  assembly  among  a  number  of 
tribes  and  nations  has  already  passed  under  review.  When 
the  Roman  empire  was  reconstructed,  the  old  assemblies  of 
gau  and  the  kingdom  could  not  be  convened  for  judging 
or  for  making  laws.  The  Frank  kings  had  their  councils 
where  laws  were  proposed  and  in  a  manner  accepted,  but 
what  was  done  could  hardly  be  called  legislation.  Still  we 
find  that  after  the  new  kingdoms  of  Germanic  origin  had  been 
constituted,  the  leading  powers  in  each  nation  participated 
anew  in  the  making  of  laws  and  the  management  of  public 


DEPARTMENTS  OF  GOVERNMENT  IN  A  STATE.  289 


affairs.  The  new  assemblies  took  the  form  of  deputations  of 
estates  which  the  kings  summoned,  when  they  saw  fit,  for  the 
purpose  of  asking  gifts  of  them,  and  they  in  turn  presented 
petitions  for  grievances.  The  estates  were  three,  nobles, 
clergy  and  cities,  to  which  in  some  countries  a  fourth,  that  of 
the  peasants  or  free,  but  not  noble,  landholders  were  added. 
This  estate  was  instituted  in  parts  of  Germany  and  Scandi- 
navia;  and  in  Sweden  it  continued  to  subsist  by  the  side  of 
the  other  three  until  within  a  few  years  since,  when  out  of 
the  four  a  parliament  of  two  houses  was  constituted,  the 
burghers  and  farmers  forming  one  house  and  the  two  re- 
maining estates  the  other.  The  estates  had  diverse  fortunes 
in  the  several  countries  of  Europe.  Spain  ought  to  be  men- 
tioned because  of  the  relatively  greater  number  of  the  depu- 
ties from  the  town,  the  clergy  and  nobles  not  being  inclined 
to  attend.  Sometimes  these  three  classes  met  together, 
sometimes  they  met  apart,  so  that  the  union  of  the  three  as 
one  body  in  France,  just  before  the  outbreak  of  the  revolu- 
tion, when  they  were  called  together  for  the  first  time  after  the 
year  161 5  had  a  precedent.  The  power  of  the  king  to  call 
or  neglect  to  convoke  the  estates  generally  prevented  their 
full  development  into  an  element  of  the  governing  power  of 
the  countries,  and  the  kings  still  retained  the  law-making 
power  in  their  hands  to  a  considerable  extent.  Yet  in  some 
countries  the  estates  were  expressly  recognized  as  having  a 
share  in  the  laws  ;  and  so  far  did  the  sovereigns  part  with 
power  in  their  distress  that  the  duke  of  Lauenburg  agreed, 
if  the  estates  would  pay  his  debts,  to  contract  no  more  with- 
out their  leave,  accepting  also  with  other  onerous  conditions 
confirmed  by  giving  them  the  right  to  depose  him  if  he  should 
break  his  word. 

§  218. 

England  has  had  a  different  course  of  political  development, 
Progress  of  the  as  it  rcspccts  parliamentary  power.    Not  to  re- 

parliamcnlary  power  *  ^  * 

in  Kngu.ui,         peat  what  has  been  said  in  the  sections  on  the 
English  constitution        171-174),  we  comprise  the  leading 
VOL.  II.  — 19 


290 


POLITICAL  SCIENXE. 


particulars  of  this  progress  in  a  brief  statement.  The  privi- 
leges, gradually  gained  by  the  house  of  commons,  of  decid- 
ing on  the  validity  of  elections  into  their  body,  of  impeaching 
obnoxious  ministers,  of  freedom  from  arrests  ;  the  practice  of 
short,  specific  appropriations  ;  the  representation  of  public 
opinion,  which  has  grown  with  every  reform  and  which  quiets 
the  mind  of  the  country,  because  the  house  can  be  the  organ  of 
all  political  measures  and  of  all  changes  in  the  fundamental 
laws  ;  the  necessity  of  annual  sessions  and  of  a  dissolution  after 
at  least  seven  years,  these  and  other  characteristics  of  the  house 
of  commons  make  it  the  most  dignified  and  the  safest  legisla- 
tive assembly  in  the  world. 

§219. 

In  considering  the  theory  of  government,  we  have  been 
obliged  to  look  at  the  relations  of  the  repre- 

The  representative.  .  ,.  ,.  . 

sentative  to  the  immediate  constituency.  We 
may  now  assume  that  he  stands  in  their  place  to  the  extent 
that  the  powers  of  deliberation  and  of  decision,  which  they 
would  have,  could  they  assemble  together  in  a  deliberative 
body,  are  transferred  to  him  ;  that  if  they  would  be  bound 
to  come  to  their  decisions  in  view  of  the  interests  of  all,  he 
is  so  bound  also  ;  that  he  can  make,  according  to  a  right 
estimate  of  his  duties,  no  absolute  pledges  requiring  him  to 
support  a  particular  measure  or  party  ;  and  that  he  may  even 
be  bound  to  oppose  the  measures  of  his  party,  to  change  his 
convictions  and  change  his  vote  without  being  bound  to  re- 
sign his  place.  He  represents,  as  one  of  many,  the  whole 
country.  The  object  of  election  is  to  decide  who  is  the 
wisest  and  ablest  man  within  reach  to  take  this  post — who 
can  do  most  good  to  the  country  if  chosen.  But  the  public 
good  consists  of  two  parts — the  common  good  and  the  good 
of  each  particular  district  or  represented  community.  These 
will  not  be  inconsistent  with  one  another,  generally  speaking  ; 
but  at  times  they  will  appear  to  be  so,  and  it  is  desirable  to 
find  men  of  broad  minds  who  can  take  both  into  view,  and 
estimate  duly  the  bearing  of  measures  on  both.    There  must 


DEPARTMENTS  OF  GOVERNMENT  IN  A  STATE.  291 


be  parties,  but  in  advocating  particular  measures  the  repre- 
sentative must  no  more  be  a  partisan  than  he  must  seek  the 
interests  of  only  one  particular  place  or  district. 

Hence,  if  it  were  possible  for  the  whole  country  to  choose 
all  the  representatives  by  a  general  ticket,  and  to  have  wisdom 
enough  to  do  this,  no  better  mode  of  selecting  them  could  be 
desired.  They  would  be  chosen  out  of  the  number  of  the 
wisest,  wherever  they  could  be  found,  and  with  the  fewest 
local  jealousies.  But  only  a  community  of  angels  could  do 
this.  The  people  in  the  best  educated  lands,  where  they  are 
trained  up  for  the  duties  of  political  life,  know  little  of  the 
men  fit  for  serving  the  community  who  live  three  hundred 
miles  away  from  them.  How  could  they  intelligently  cast 
their  votes  for  one  or  two  hundred  strangers  ?  The  more 
democratic  the  people,  the  lower  down  suffrage  descends, 
the  worse  things  would  be.  We  may  lay  it  down  that  gene- 
ral tickets  are  undesirable  both  for  this  reason  and  for  a 
reason  of  still  greater  importance,  that  they  shut  out  the 
opinion  of  the  minority  from  having  any  weight  whatever, 
and  in  this  way  carry  the  principle  that  the  majority  shall 
govern  to  a  rigorous  tyrannical  extreme.  They  prevent 
light  from  being  thrown  into  legislatures,  they  render  the 
minorities  disaffected,  intriguing,  possibly  rebellious. 

Small  districts,  returning  each  its  member,  arc  then  far  to 
be  preferred  ;  they  are  what  now  the  practice  of  all  free  states 
accepts.  But  still  difficulties  and  inconveniences  stand  in  our 
way.  It  can  and  often  does  happen  that  opinion  is  concen- 
trated in  one  place  and  diffused  in  others.  Hence  an  actual 
majority  in  a  state  may  have  a  minority  in  the  chamber  or 
chambers.  Let  there  be,  for  instance,  one  hundred  and 
twenty  districts  returning  two  members  each,  of  which  one 
hundred  give,  on  an  average,  a  majority  of  one  hundred 
votes  to  the  candidates  whom  they  elect.  Here  wc  have  a 
majority  of  ten  thousand.  But  it  is  quite  conceivable  that 
each  of  the  other  twenty  may  give,  on  an  average,  a  majority 
of  eleven  hundred  votes  to  their  successful  candidates. 
Here  wc  have  twelve  thousand  more  votes  given  by  those 


292 


POLITICAL  SCIENCE. 


twenty  districts  than  by  the  one  hundred,  while  they  are  over- 
come in  the  legislature  on  every  important  question  by  a 
majority  of  one  hundred  and  sixty.  It  may  indeed  be  said 
with  some  justice  that  a  diffused  opinion  over  large  districts 
of  a  state  or  nation  is  more  likely  to  be  right  than  an  over- 
whelming one  in  a  few  districts.  It  may  be  said  also  that 
things  will  rectify  themselves  in  the  long  run.  But  this  is 
not  entirely  true  ;  for  certain  interests  may  pertain  more  to 
one  part  of  a  state  or  country  than  to  another  ;  we  may 
affirm  then  that  elections  in  small  districts  do  not  always  rep- 
resent public  opinion  or  public  wisdom,  and  may  give  an 
undue  power  to  the  minority. 

What  weight  ought  to  be  attached,  then,  to  the  views  of 
the  late  John  C.  Calhoun,  whose  consecration  of  his  life  to 
the  defence  of  slavery  should  not  blind  his  countrymen  to 
his  great  ability  ?  His  opinion  was  that  interests  ought  to  be 
represented,  as  such  ;  that  a  majority  will  choose  its  execu- 
tive, appoint  its  judges,  through  them  interpret  the  constitu- 
tion, have  the  legislature  at  its  disposal,  and  thus  in  fact  op- 
press the  minority.  The  remedy  would  be,  he  thinks,  to 
give  to  the  great  interests  their  representation  and  to  assure 
them  of  power  enough  to  defend  themselves  and  make  them- 
selves heard  in  public  places. 

That  every  interest  which  is  of  any  national  moment  ought 
to  find  some  advocate  in  public  councils  I  freely  admit,  but 
it  is  impossible  to  represent  interests,  especially  when  not 
concentrated  but  dispersed  over  a  wide  tract,  by  any  method 
conceived  of  when  Mr.  Calhoun  wrote  his  "  Essay  on  Gov- 
ernment." On  the  plan  of  making  a  constitutional  provision 
for  them,  wc  should  soon  fall  into  hopeless  embarrassments. 
The  cotton  interest  and  the  sugar  interest,  and,  in  general, 
the  slave  interest  could  protect  itself  by  its  concentration  ; 
nay,  it  actually  governed  the  politics  of  the  country  more 
than  all  others,  because  it  was  locally  united,  and  bred  up 
men  whose  leisure  could  be  given  to  politics.  But  how 
would  it  be  of  the  shipping,  or  the  iron  or  other  manufactur- 
ing interest,  or  the  great  agricultural  one  ?    And  if  any  of 


DEPARTMENTS  OF  GOVERNMENT  IN  A  STATE.  293 


these  had  a  claim,  would  not  the  great  mass  of  consumers 
have  a  greater  ?  Mr.  Calhoun's  plan  of  giving  protection  to 
interests  seems  to  be  but  another  application  of  the  protective 
policy  which  he  justly  rejected.  We  should  have  in  this 
way  opposing,  even  warring,  interests,  made  perpetual  by 
a  constitution,  and  the  country  permanently  divided  up  as 
far  as  law  could  make  such  a  division. 

§  220. 

Far  more  feasible  is  minority  representation,  if  only  it  could 
Minority  represen-  ^^ke  3.  simple  and  practicable  shape.  U  prac- 
ticable  it  can  be  applied  in  all  kinds  of  elections, 
for  political  and  municipal  officers,  for  representatives,  and  in 
the  elections  of  private  corporations,  wherever,  in  fact,  the 
persons  voted  for  on  the  same  ticket  are  more  than  one. 
This  would  require  that  many  laws  and  even  constitutions 
should  be  modified,  and  it  will,  without  doubt,  take  some 
time  before  the  rude,  unjust  rule  shall  be  superseded,  that 
the  majority  of  voters,  without  respect  to  the  wishes  of  the 
minority,  must  decide. 

As  this  subject  has  been  very  much  discussed  within  a  few 
years,  it  is  not  strange  that  many  projects  have  been  brought 
before  the  public,*  the  principal  of  which  are  the  following: 

*  The  literature  of  this  subject  maybe  found  in  M.  Laveleye's 
essay  "  Sur  les  formes  de  gouvcrnement,"  but  he  has  omitted  some 
works  and  papers.  Some  of  the  principal  are  "  La  question  t'lec- 
torale,"  Ernest  Navile,  1871  ;  Thomas  Hare,  "Treatise  on  the 
Election  of  Representatives  "  (1859,  0:  H.  Fawcett,  Mr.  Hare's 
Reform  Bill  Simplified  and  E.vjjlained  ;  Walter  Kailey,  "  A  Scheme  for 
Proportionate  Representation,"  whose  views  are  recommended  by  the 
Marquis  of  Hiencourt,  in  the  Correspondent  (June,  1870),  and  by 
M.  Navile  in  his  "Reforme  electorale  en  France;"  Simon  Sterne 
on  "  Representative  (lovernmeut  and  Personal  Representation,"  Phil- 
adeli)hia,  1871;  Mr.  Harculovv's,  proposed  in  Compress  and  through 
tlie  press  ;  an  essay  on  minority  representation,  by  1).  1).  Fiu'ld,  in  the 
Journ.  of  the  Amer.  Social  Sci.  Association,  No.  iii.,  for  187 1,  with 
several  other  essays  on  the  same  subject  in  the  same  munber  ;  "  De  la 
rcforme  electorale,"  by  Rolinjacciuemyns,  Brussels,  1865  ;  an  article 
in  Bluntschli's  Allgemeines  Staatsrecht  "xvi.,  492,  Munich,  1863;" 
Mr.  J.  S.  Mill's  work  on  representative  government,  chap.  vii.  ; 
Prof.  Craik's  (see  text).    A  number  of  these  essays  I  have  never  seen. 


294 


POLITICAL  SCIEN'CE. 


1.  The  cumulative  plan,  which  consists  in  casting  as  many 
votes  as  there  are  candidates,  and  being  allowed  to  cast  all  or 
more  than  one  for  the  same  person.  Thus  let  there  be  three 
persons  to  be  voted  for,  and  let  the  parties  be  one  thousand 
and  five  hundred.  The  minority,  by  throw  ing  all  their  strength 
upon  one  name  could  be  sure  of  returning  one  representative. 
But  small  minorities  would  still  be  of  no  account. 

2.  Another  plan,  first  proposed  by  Prof  Craik,  of  Belfast, 
is  that  there  are  thiee  places  to  be  filled,  but  no  one  is  allowed 
to  vote  for  more  than  two.  Thus  if,  of  fifteen  hundred 
voters,  one  thousand  return  the  candidates  A  and  B,  the 
minority,  consisting  of  five  hundred,  can  return  the  other. 
But  in  this  case,  by  the  proper  management,  the  majority 
could  overcome  the  voting  power  of  the  minority,  unless  the 
numbers  approached  nearer  to  equality  than  in  the  case  sup- 
posed.* This  plan  could  also  be  combined  with  the  first 
mentioned.  It  has  been  put  to  trial  in  the  English  reform 
bill  of  1867,  in  regard  to  certain  boroughs  returning  three 
members  to  parliament. 

3.  Another  plan,  devised  by  Mr.  Walter  Bailey,  is  "  a  scheme 
for  the  proportional"  or  uninominal  vote.  Here  each  elector 
casts  a  single  vote,  and  it  may  happen  that  such  a  number  of 
votes  shall  be  thrown  for  a  single  candidate,  as  may  be  far 
more  than  enough  to  secure  his  election.  The  candidate  is 
allowed  to  publish  beforehand  a  list  of  names  of  such  persons 
as  may  in  succession  receive  the  benefit  of  votes  beyond  his 
necessary  quota,  which  thus  are  put  to  their  account.  Thus 
the  number  of  votes  necessary  to  elect  him  being  one  thou- 
sand, the  next  thousand  of  his  surplus  goes  to  B,  the  next 
succeeding  to  C,  and  so  on.  This  plan  would  involve  an 
arrangement  of  electoral  quotas  much  beneath  the  majority 
of  votes  to  be  cast,  and  the  giving  of  power  to  a  popular  can- 
didate to  say  who  should  be  his  associates,  the  latter  of  which 

*  That  is,  one  thousand  persons  could  so  arrange  their  two  thousaml 
votes  as  to  give  A.  seven  hundred  anil  fifty,  15.  seven  hundred,  and  C. 
five  hundred  and  fifty,  but  the  highest  number  that  the  minority  of 
five  hundred  could  reach  would  be  only  five  hundred. 


DEPARTMENTS  OF  GOVERNMENT  IN  A  STATE. 


295 


characteristics  does  not  accord  well  with  the  idea  of  indepen- 
dence on  the  voter's  part. 

4.  Mr.  Thomas  Hare's  plan,  which  has  been  advocated  by 
Mr.  J.  S.  Mill,  Mr.  Fawcett,  the  political  economist,  and  by- 
many  others,  has  the  following  features  :  Every  voter  places 
on  his  list  the  name  of  his  first  choice  at  the  head,  and  after- 
wards others  whom  he  would  accept  as  his  representatives  in 
the  order  of  his  preference.  There  is  to  be  a  fixed  electoral 
quota  of  votes  as  in  the  plan  last  mentioned,  and  the  elector, 
in  selecting  his  subsidiary  candidates  is  not  to  be  confined  to 
his  own  district,  but  may  range  all  over  the  country.  When 
the  votes  are  counted  the  person  having  the  quota  is  elected, 
and  his  surplus  goes  to  the  next  following,  and  so  on.  In  this 
way  every  vote  will  tell  for  the  measures  which  are  favored 
by  him  who  casts  it.  The  plan  will  tend  to  elect  the  person 
who  is  the  voter's  first  choice,  first,  and  others  in  their  order. 
It  seems  to  be  just  ;  it  represents  the  country,  not  the  dis- 
trict ;  and  it  is  proportional.  Fifty  thousand  voters  in  a  party 
can  return  fifty  members,  if  one  thousand  elects  one,  and  they 
will  probably  be  the  best  members  of  the  party.  Yet  with 
these  advantages  the  plan  labors  under  very  serious  disad- 
vantages. How  can  ordinary  electors  select  ten,  not  to  say 
twenty  or  fifty  names  of  persons  by  whom  they  would  wish 
to  be  represented,  in  the  order  of  intelligent  preference  ?  The 
result,  probably,  would  be  less  independence,  a  more  com- 
pact system  of  instruction  given  by  preparing  committees 
to  the  electors  whom  to  choose  than  now.  Add  to  this  the 
work  of  counting  and  arranging,  which  would  be  far  greater 
than  at  present.  It  is  needless  to  add  that  to  the  election 
of  single  officers  it  would  have  no  application,  an  objection 
which  applies  equally  to  the  other  three  which  have  been 
mentioned. 

<^  221. 

There  are  two  ways  of  choosing  representatives  and  cxccu- 
nirect  and  indirect        officcrs,  whcu  a  constitutiou  places  the  right 
elections.  of  choice,  not  in  t\K  l>ands  of  another  power, 

but  of  the  people,  or  voting  part  of  the  people  themselves. 


296 


POLITICAL  SCIENCE. 


One  is  the  direct  method  of  reaching  the  result  ;  the  other, 
the  indirect,  that  of  appointing  proxies  who  are  to  finish  what 
the  voters  began.  It  seems  a  strange  thing  that  any  man 
should  be  pronounced  unfit  to  elect  his  representative  who  is 
fit  to  elect  a  proxy.  The  elector  ought  to  have  no  power  to 
vote  at  all,  or  to  have  the  power  of  full  and  final  choice.  It 
is  a  distrust  of  the  people,  when  this  half-way  measure  of 
electors  acting  in  their  place  is  preferred  by  a  constitution. 

Nevertheless,  there  are  those  who  would  introduce  this 
double  election,  or  election  with  two  degrees,  into  the  machin- 
ery of  the  state.  It  is  said  that  the  less  enlightened  classes 
of  freemen  are  incapable  of  choosing  those  representatives 
(or,  indeed,  those  ofiicers  of  government)  who  are  best  fitted 
for  defending  their  interests  and  managing  public  affairs. 
They  necessarily  vote  as  others  instruct  them,  and  thus  only 
reduplicate  the  power  of  demagogues.  "  They  are  therefore 
only  a  machine — a  dangerous  machine,  as  being  very  power- 
ful and  very  blind."  Let  now  these  same  persons  name 
others  of  their  immediate  neighborhood  to  act  as  their  depu- 
ties, and  select  the  representatives  with  a  wider  knowledge 
of  men  and  of  political  measures.  The  probability  is,  it  is 
claimed,  that  a  much  better  class  of  legislators  would  be 
chosen. 

The  proposition  is,  however,  to  be  condemned  on  two 
accounts.  It  is,  in  the  first  place,  not  a  practical  one.  Those 
who  have  political  weight  enough  to  cast  votes,  will  not  be 
content  with  this  remote  connection  with  the  active  managers 
of  public  affairs  ;  they  will  insist  on  making  their  own  elec- 
tions, and  if  they  have  the  power  already,  will  not  yield  it 
up.  Again,  the  indirect  election,  or  that  of  two  degrees, 
would  naturally  produce  indifference  to  the  exercise  of  the 
right  conferred  on  the  voter.  He  is  separated  from  the 
important  result  on  account  of  his  want  of  intelligence,  and 
thus  merely  decides  who,  in  his  judgment,  is  best  fitted  to 
exercise  political  rights  in  his  place.  He  will  therefore  feci 
little  interest  in  the  result.  Or,  if  he  does  take  a  warm  part 
in  them,  he  will  bind  his  deputies  to  do  his  will,  or  be  sure 


DEPARTMENTS  OF  GOVERNMENT  IN  A  STATE.  297 


beforehand  that  they  think  with  him.  Thus,  either  apathy  or 
a  complicated  method  of  reaching  the  end,  instead  of  a  sim- 
ple one,  would  be  the  consequence.  The  true  opinion  is, 
that  if  there  is  any  tolerably  accurate  dividing  hne  between 
those  who  can  make  an  intelligent  choice  and  those  who  can- 
not, the  latter  class  ought  not  to  have  the  privilege  of  voting. 
The  elections  are  made  in  order  to  find  out  the  most  capable 
and  upright  men,  the  best  qualified  to  make  laws  and  to 
manage  public  affairs.  No  man  has  a  right  to  vote,  or  else 
all  ought  to  have  it.  If  there  were  such  a  right,  irrespective 
of  property,  character,  intelligence,  it  would  be  more  true  to 
theory  that  it  should  be  exercised  directly,  rather  than  that 
the  most  important  end  to  be  attained — the  choice  of  the 
lawgiver  or  executive  officer — should  be  left  to  the  will  of 
others. 

The  election  of  president  of  the  United  States  by  electors 
Electors  of  presi-  and  not  by  popular  vote,  is  not  indirect  elec- 

dcnt  in  the  United 

States.  tion,  because  the  parties  for  the  difierent  candi- 

dates have,  each  of  them,  their  electoral  tickets,  and  no 
elector  thinks  of  casting  his  vote  otherwise  than  as  those  who 
chose  him  intended.  The  electors,  again,  never  meet  in  a 
body  ;  they  have  no  joint  deliberations  which  show  that 
their  function  is  merely  ministerial.  The  plan  looked  towards 
the  casting  of  votes  by  the  people,  as  citizens  of  states,  and 
not  as  a  whole  community,  which  is  shown  by  the  two  votes 
that  every  state  possesses  besides  those  determined  by  their 
relative  number  of  representatives.  If,  then,  the  people  as  a 
whole  was  evenly  balanced  between  two  candidates,  the 
smaller  states,  it  might  be,  and  hence  the  minority  of  the 
voters,  would  decide  the  election.  The  idea,  then,  of  a  major- 
ity of  the  population  in  the  union  was  not  in  the  minds  of  the 
framers  of  the  constitution  when  they  adopted  this  plan,  nor 
yet  of  a  majority  of  the  states,  but  they  seem  to  have  aimed 
at  a  tcrtium  quid,  an  election  in  which  the  state  principle  and 
the  United  States  principle  should  be  blended.  It  is  not 
improbable,  however,  that  they  intended  also  to  make  the 
electors  responsible  for  their  votes,  as  they  gave  them  the 


298  POLITICAL  SCIENCE. 

power  of  voting  for  whom  they  would.  But,  if  this  were  so, 
the  plan  was  so  far  forth  a  failure,  for  men  selected  for  so  im- 
portant a  duty  by  a  party,  and  not  meeting  as  a  body  nor 
required  to  deliberate  together,  could  not  have  the  cohesion 
and  common  action  of  representatives.  They  are  qualified 
to  be  and  are  merely  agents,  and  as  such  have  no  responsi- 
bility separate  from  that  of  their  principals. 

But  although  direct  election  ought  to  belong  to  the  citizen 
Universal  suRVage  Capable  of  cxcrcising  political  rights  with  intelli- 
di^dJl^n°li^  ge"ce,  under  the  reign  of  universal  suffrage 
something  like  indirect  election  prevails.  We 
refer  of  course  to  the  fact  that,  in  democracies,  where  the 
party  principle  is  strong,  the  voters  find  all  the  candidates 
chosen  for  them  by  irresponsible  men  meeting  in  a  caucus  or 
convention,  and  governed  quite  as  much  by  personal  as  by 
patriotic  motives.  A  sufficient  time  before  an  election  a  con- 
vention is  assembled  to  consider  what  candidates  for  state 
officers  shall  be  proposed  for  the  party,  and  a  list  is  pub- 
lished embracing  all  the  principal  officers  of  the  state.  Then, 
a  day  or  two  perhaps  before  the  election,  another  caucus  de- 
termines the  candidates  for  the  legislature,  or  only  those  for 
the  house  of  representatives.  Xot  one  in  a  hundred  of  the 
voters  has  his  opinion  asked  in  regard  to  the  selection  ;  many 
of  the  names  are  those  of  unknown  persons,  some  of  them 
those  of  persons  in  whom  their  neighbors  have  no  confidence, 
but  who  must  be  floated  onward  by  the  general  popularity 
of  the  ticket,  and  by  the  habit  of  \-oting  en  masse  for  all  the 
names  upon  it.  This  is  a  description  of  what  is  happening 
in  hundreds  of  districts  and  towns  and  in  all  the  states  of  this 
union.  Nor  is  the  evil  confined  to  the  United  States.  M. 
Courcelle  Seneuil  gives  us  an  account  of  a  similar  state  of 
things  in  France."  "  With  this  form  of  election,"  says  he — 
that  is,  with  the  direct  vote — "  the  elector  cannot  know  the 
candidates  between  whom  he  is  called  to  choose.  They  are 
at  a  distance  from  him  ;  he  has  never  seen  them,  and  prob- 


Heritage  de  la  revolution,  p.  193  et  seq. 


DEPARTMENTS  OF  GOVERNMENT  IN  A  STATE.  299 


ably  never  will  ;  he  knows  nothing  of  their  antecedents,  their 
real  opinions  ;  above  all,  of  their  characters.  What  elector, 
even  among  the  most  enlightened,  could  say  in  conscience 
that  he  was  capable  of  choosing,  with  due  knowledge  of  the 
case,  forty,  or  it  may  be,  fifty  representatives  for  Paris.  And 
if  the  most  enlightened  man  is  almost  always  reduced  to  the 
necessity  of  voting  blindly,  without  knowing  what  he  does, 
in  what  condition  will  the  ignorant  man  be  found,  that  is  to 
say,  almost  the  sum  total  of  the  electors  ?  Under  this  form 
of  election  some  noisy  and  active  politicians  unite  together, 
and  declare  themselves  representatives  of  a  party,  make  up 
a  list  of  candidates  and  present  it  to  the  electors.  These  find 
themselves  then  compelled  to  choose  between  two  lists,  or  to 
remain  without  a  representative  ;  for  if  they  do  not  vote  for 
a  list  where  the  names  which  they  dislike  often  constitute  a 
half,  the  candidates  of  the  opposing  party  will  gain  the  day." 

"  All  is  artifice  and  fiction  in  this  system.  The  elector  is 
not  free  and  cannot  know  either  those  in  favor  of  whom  he 
votes  or  those  against  whom  he  votes.  The  suffrage  called 
direct  is  in  realitv  indirect.  It  is  also  a  suffrage  with  two  de- 
grees,  because  committees  formed  at  hap-hazard  and  habit- 
ually by  intrigue  and  efirontery  are  those  who  prepare  the 
lists,  introducing  into  them  whom  they  please  and  exclud- 
ing from  them  whom  they  please,  and  in  this  way,  with  no 
regular  agency  to  do  so,  discharging  the  most  important 
electoral  functions  ;  whilst  the  part  acted  by  the  elector  is 
reduced  to  an  act  of  consent  in  which  he  is  not  free.  We 
have  thus  an  irregular  suffrage  of  two  degrees  substituted 
for  the  regular  suffrage  defined  by  law.  A  system  cannot  be 
conceived  of  more  favorable  to  men  without  character  or 
conviction,  without  popularity,  fortune,  or  power,  and  above 
all,  to  intriguers." 

"  This  system  has  another  result  worse  still,  and  more 
grave  if  possible — it  favors  the  election  of  men  who  profess 
extreme  opinions,  because  in  an  ignorant  population  it  is 
always  extreme  opinions  or  rather  violent  temperaments  that 
get  the  upper  hand  in  each  party.    We  must  not  deceive 


300 


POLITICAL  SCIENCE. 


ourselves  or  be  imposed  on  by  words.  The  vote  by  depart- 
ments and  with  secret  ballots  lays  on  us  the  necessity  of  the 
suffrage  with  two  degrees.  There  is  no  choice  save  as  to 
form.  We  prefer  that  which  is  regulated  by  law,  which 
leaves  the  elector  free  and  permits  him  to  know  what  he  is 
doing  when  he  votes,  to  that  which  gives  the  elector  up  help- 
less to  intrigues,  charaltanism  and  the  lies  of  politicians." 

The  suffrage  with  two  degrees  [or,  as  we  call  it  sometimes, 
double  or  indirect]  "  was  well-known  in  France  for  ages  when 
the  deputies  to  states-general  were  appointed.  It  was  en- 
grafted into  the  constitution  of  1791,  and  by  it  the  constitu- 
ent assembly  and  the  convention  were  elected,  which  also 
sanctioned  it  by  their  legislation.  The  plan  under  the  consti- 
tution above  named  was  the  following  :  the  citizens  elected 
by  the  cantons  meeting  in  a  primary  assembly  chose  electors 
one  for  every  hundred  registered,  two  for  one  hundred  and 
fifty,  and  so  on."  The  electors  chosen  by  the  primary  assem- 
blies met  on  the  Sunday  following  their  election  to  nominate 
the  deputies  of  the  department.  (Comp.  Courcelle  Seneuil, 
u.  s.,  p.  191.)  The  constitution  of  Norway,  framed  in  1814, 
contains  a  similar  provision. 

The  remarks  of  Courcelle  Seneuil  are  deserving  of  serious 
consideration.  We  may,  I  think,  lay  it  down  (l)  that  the 
districts  for  voting  ought  to  be  of  small  size  in  order  that 
all  the  electors  may  be  able  to  inform  themselves  in  regard 
to  the  character  of  the  candidates.  (2)  If  universal  suffrage 
prevails,  with  the  attendant  machinery  of  party  contests  there 
will  be  practically  an  indirect  or  double  election.  The  voters 
will  be  instructed,  and  in  a  manner  compelled  by  party  ties 
and  their  own  want  of  knowledge  in  regard  to  the  person 
to  be  voted  for,  and  the  more  ignorant  they  are  the  more 
easily  will  they  be  led.  (3)  In  this  case  the  indirect  election 
is  preferable  to  that  which  prevails  among  us,  for,  however 
much  the  second  electors  may  come  under  the  control  of 
party  managers,  they  will  be  more  intelligent  and  discern- 
ing that  the  first.  (4)  If  the  evils  incident  to  our  system  of 
suffrage  owing  to  its  being  universal,  cannot  be,  in  part  at 


DEPARTMENTS  OF  GOVERNMENT  IN  A  STATE.  301 


least,  checked  by  means  of  personal  candidacy,  by  minor- 
ity representation,  and  voting  independently  of  party,  the 
indirect  election  would  be  much  the  less  evil  of  the  two  ; 
although  in  a  democratic  state  where  the  single  election  pre- 
vailed it  would  stand  little  chance  of  being  substituted  for  the 
other.  The  reader  will  find  something  further  on  this  sub- 
ject in  the  sections  on  parties  in  democratic  states.* 

222. 

In  the  system  of  estates,  as  has  appeared,  there  were  three 
Number  of  Cham-  or  evcn  four  distinct  bodies,  which  often  sat 
apart.     Two  chambers  became,  as  we  have 
seen,  rather  by  historical  accident  than  by  any  political  tact, 
the  established  usage  under  the  constitution  of  England,  and 

*  Mr.  J.  S.  Mill  discusses  this  subject  in  chap.  9  of  his  Considera- 
tions oil  Representative  Government.  He  makes  two  points  against 
indirect  elections.  The  first  is  that  the  benefits  incident  to  popular 
power  are  more  certainly  lessened  by  such  elections  than  the  dan- 
gers. The  danger  lies  in  entrusting  with  a  vote  for  a  member  of 
))arliament,  a  person  who  has  not  intellect  and  instruction  enough  to 
judge  who  would  best  fill  such  a  place,  and  yet  could  pick  out  from 
among  his  neighbors  a  person  fully  able  to  judge  and  choose  with 
wisdom.  The  benefit  would  lie  in  the  public  spirit  and  political 
intelligence  which  would  be  developed  by  the  necessity  of  making 
a  direct  choice,  while  an  indirect  choice  has  no  effect  in  cultivating 
either.  Moreover,  the  voter  who  cannot  cast  a  direct  vote,  cannot 
be  expected  to  take  much  interest  in  the  indirect  one.  Would  he 
not,  then,  fail  to  discharge  it?  Again,  if  a  person  without  intelli- 
gence is  not  a  sufficient  judge  of  the  fitness  of  a  i)erson  offered  to  his 
choice  to  be  a  member  of  parliament,  and  really  wishes  to  have  some 
one  make  the  choice  for  him,  "  he  has  only  to  ask  this  confidential 
person  whom  he  had  better  vote  for.  In  this  case  the  two  modes 
of  election  coincide  in  their  result,  and  every  advantage  of  indirect 
election  is  obtained  under  the  direct."  If,  however,  he  desires  to 
make  what  would  be  substantially  a  direct  choice  when  he  can  only 
cast  a  primary  vote,  "he  has  only  to  choose  a  well-known  partisan 
of  the  candidate  whom  he  i)refers,  or  some  one  who  will  pledge  him- 
self to  vote  for  that  candidate."  The  force  of  all  this  may  be  ad- 
mitted, and  yet  we  may  reply-that  he  who  c.innot  vote  directly  with 
intelligence  would  not  take  wise  counsel  whom  he  should  vote  for, 
but  would  assuredly  in  most  cases  take  the  advice  of  a  i)lausible 
demagogue. 


302 


POLITICAL  SCIENCE. 


the  same  usage  has  prevailed  in  all  the  colonies  founded  by 
the  Anglican  race,  in  all  the  United  States,  in  the  American 
Congress,  and  the  dependencies  of  the  British  crown  speaking 
in  the  English  language.  It  is  remarkable  that  to  the  Anglican 
race  this  has  seemed  to  be  a  law  as  fixed  as  anything  in  poli- 
tics, so  that  where  there  existed  no  natural  basis  for  two 
chambers,  or  the  bicameral  system,  as  Dr.  Lieber,  we  believe, 
first  called  it, it  was  thought  necessary  to  establish  some 
artificial  one.  In  England,  although  historical  accident  aided 
the  permanent  separation  of  the  old  estates  into  two,  and 
gave  to  the  commons  an  independent  position,  there  were 
reasons  why  there  should  be  two  houses  and  no  more. 
There  was  a  marked  line  between  the  great  land-holding 
nobility  (including  bishops  and  abbots,  representing  large 
lands  held  in  mortmain),  and  the  other  persons  called  to  the 
parliaments.  And  the  burgesses  representing  the  towns 
easily  coalesced  with  the  knights  of  the  shires,  since  they  had 
common  interests  in  maintaining  English  liberties,  and  resist- 
ing usurpations.  In  the  formation  of  the  constitution  for  our 
union,  a  principle  on  which  an  upper  house  could  be  founded 
lay  in  the  equality  and  antecedent  separate  existence  of  the 
states.  The  plan  of  the  two  houses  of  parliament  was  so  far 
followed  that  the  house  of  representatives  was  invested  with 
the  power  of  originating  all  money  bills,  while  the  senate, 
unlike  the  house  of  lords,  confirmed  treaties,  and  appointed 
certain  officers,  but  somewhat  like  the  lords  heard  and  decided 
in  cases  of  impeachment.  In  the  colonies  and  states  the 
houses  were  constructed  on  no  one  consistent  plan.  Gener- 
ally the  senate  or  council  was  smaller  ;  in  many  cases  ti 
continued  longer  in  the  exercise  of  its  functions  ;  in  some, 
it  was  partially  recruited  in  successive  years  so  as  never 
wholly  to  expire.  It  is  singular  what  hold  traditions  from 
the  mother  country  have  had  in  some  of  the  older  states. 
The  houses  in  some  of  them  heard  and  granted  petitions  of 
divorce  a  vinculo  matrimonii ;  in  one  or  more  the  senate 


*  Civil  Liberty,  chap.  xvii. 


DEPARTMENTS  OF  GOVERNMENT  IN  A  STATE.  303 


heard  appeals  as  a  supreme  court,  after  the  manner  of  the 
house  of  lords.  No  person,  so  far  as  I  know,  has  seriously 
maintained  that  the  system  of  two  houses  ought  to  be  abol- 
ished. 

Since  the  establishment  of  constitutional  governments  on 
the  continent  of  Europe,  the  practice  has  varied  between  one 
and  two  chambers.  In  France,  the  constitution  of  the  Bour- 
bons of  June  4,  1814,  contained  a  provision  for  two,  of  which 
the  members  of  the  chamber  of  peers  could  be  hereditary  or 
for  life.  They  continued  through  the  Orleans  dynasty,  but 
the  empire  went  back  to  one  legislative  body  elected  by  open 
vote,  with  an  appointed  senate  ;  and  at  the  present  time, 
while  we  write,  the  one  chamber  of  the  constitution  is  discuss- 
ing projects  of  constitutions  amid  the  predilections  of  oppos- 
ing parties,  while  the  most  enlightened  men  of  the  countr)' 
are  in  favor  of  two. f 

The  constitution  of  Norway  has  a  singular  device  in  it  for 
something  like  two  chambers,  while  in  reality  there  is  but 
one.  The  Storthing  separates  into  two  parts,  one  containing 
one-third,  the  other  two-thirds,  and  laws  are  made  by  the 
vote  of  the  two,  confirmed  afterwards  by  that  of  the  whole 
assembly.  Sweden,  as  we  have  seen,  a  few  years  since  re- 
duced her  four  mediaeval  estates  to  two  houses,  and  is  more 
like  Great  Britain  in  the  composition  of  the  new  parliament 
than  any  other  state  of  Europe. 

§  223. 

If  a  nation  is  under  free  institutions,  one  at  least  of  the 
Composition    of  houscs  must  represent  the  opinion  of  the  nation, 
w^hem■^c'p^pul.^r  'ts  progrcssivc  political  wisdom  and  its  will. 

That  this  may  be  done,  the  territory  ought  to  be 
divided  into  districts  small  enough  for  the  voters  to  form  an 
independent  judgment  of  the  character  of  the  candidates  and 
of  their  political  preferences.    In  some  countries  an  endeavor 

f  Wo  are  glad  to  he.  able  to  ad;!  tliat  a  senate  is  alrcndv  in  exist- 
ence, the  nien)l)crs  of  which  are  partly  chosen  by  the  people,  i)artly 
by  the  chamber. 


304 


POLITICAL  SCIENCE. 


15  made  to  give  an  equal  voice  in  the  assembly  to  an  equal 
number  of  inhabitants.  But  in  order  that  those  whose  inter- 
ests are  closely  united  together  may  not  be  separated,  some- 
times electoral  districts  are  of  different  sizes,  and  according 
to  their  size  return  one,  two,  or  three.  It  seems  better  to 
break  up  a  large  city  into  independent  districts  than  to  place 
a  list  of  ten  or  twenty  before  each  resident  voter,  for  it  is  im- 
possible that  the  voters  should  be  well  enough  acquainted 
with  such  a  number  of  candidates  to  cast  an  intelligent  vote. 
Again,  every  district,  naturally  divided  off  by  interests  and 
industr}',  or  by  mountains  or  rivers  from  the  rest,  ought  to 
have  a  representation  of  its  own,  even  if,  in  so  doing,  the 
weaker  parts  of  a  country  have  somewhat  of  an  advantage 
in  this  respect  over  cities  and  compact  communities.  It  is 
not  a  political  right  that  each  voter  should  have  an  aliquot 
part  of  representative  power,  say  one  one-hundredth  or  one 
ten-thousandth,  but  that  he  should  have  his  interests  pro- 
tected in  the  legislature  of  the  county  or  state.  We  have 
already  seen  that  all  the  representatives  represent  the  countrj', 
both  the  totality  of  interests,  and  those  of  each  part  ;  the 
most  convenient  and  equitable  plan  therefore  is  that  those 
who  have  within  a  certain  territory  the  least  power  of  making 
themselves  felt  in  the  assembly  should  be  most  sure  of  doing 
this.  This  principle  will  apply  to  rural  districts,  where  the 
power  of  the  combination  of  intelligence  and  of  property  is 
smaller  than  in  the  towns,  and  where  there  are  fewer  noisy 
elements.  It  applies  also,  as  we  have  seen,  to  minorities  who 
are  likely  even  to  be  oppressed.  For  one,  I  should  not  seek 
for  more  than  a  distant  approximation  between  numbers  of 
voters  and  representation  ;  and  as  cities  have  means  of  influ- 
ence which  the  country  does  not  possess,  as  almost  all  the 
disturbing  elements  arise  in  city  life,  as  the  great  interests  of 
commerce,  manufactures,  banking  and  other  capital  there 
situated  are  sure  to  be  protected  for  general  reasons,  I  would 
give  the  rural  districts  something  more  than  their  share  of 
legislative  power.  The  cities  are  to  be  dreaded  in  modern 
times.    They  take  the  lead  in  all  commotions,  they  have  less 


DEPARTMEXTS  OK  GOVERNMENT  IN  A  STATE.  305 


wisdom  and  stabilit)',  but  more  energy  and  political  fanati- 
cism than  the  thinly  settled  country,  where  men  living  apart 
act  less  on  each  other,  and  think  for  themselves.  It  can  be 
shown,  I  believe,  that  in  great  crises  of  national  commotion, 
when  the  great  interests  of  a  country  have  been  at  stake, 
the  country-people  when  once  aroused  are  the  surest,  strong- 
est defenders  of  the  land.  Such  was  the  case  in  the  war  of 
the  revolution  and  in  the  great  struggle  of  the  present  time 
against  secession  in  this  countrv. 

The  number  of  representatives  in  the  lower  house  cannot 
be  fixed  with  precision.  If  they  are  quite  few  there  is  more 
danger  of  influence  by  bribes.  If  they  are  quite  numerous 
thore  are  greater  dangers.  The  larger  the  body  collected 
together  within  the  reach  of  one  voice,  the  more  it  comes 
under  the  sway  of  excitement,  or  it  will  be  apt  not  to  feel 
a  due  responsibility  because  it  is  divided  up  ;  for  danger  of  fac- 
tions and  want  of  coherence  increase  with  numbers.  A  house 
of  several  thousand  representatives  would  be  unmanagea- 
ble. This  was  one  of  the  vices  of  the  ancient  and  mediaeval 
city-states,  as  we  have  seen  ;  and  under  constitutional  forms 
the  same  evils  must  prevail  to  a  certain  extent.  The  difficulty 
of  hearing  in  a  large  or  badly  contrived  hall  would  have  an 
effect  on  laws  and  debates.  An  assembly  unwieldy  through 
its  numbers,  where  every  one  is  responsible,  could  hardly  per- 
form the  office  of  deliberation.  Everything  would  need  to 
be  done  by  committees  and  by  a  few  prominent  leaders. 
What  is  the  right  number  experience  must  decide.  The 
British  house  of  commons,  consisting  of  more  than  si.x  hun- 
dred, is  altogether  too  large  to  secure  the  proper  discharge 
of  duty  on  the  part  of  all.  Hence  the  responsibility  of  being 
present  and  watching  business  is  the  less  felt,  and  very  often 
but  a  handful  of  members  are  present. 

In  what  was  said  221)  of  minority  representation,  it  ap- 
peared that,  for  its  introduction  under  some  of  the  schemes 
proposed,  voters  must  look  beyond  their  own  district  for  tiieir 
candidates.  This  is  a  practice  hardly  known  in  the  United 
States,  and  may  be  said  to  be  undemocratic,  for  in  a  dcnioc- 
VOL.  II.— 20 


3o6 


POLITICAL  SCIENCE. 


racy  the  number  of  persons  willing  to  go  into  political  life  is 
the  larger  the  more  it  approaches  to  the  absolute  character  ; 
and  as  they  are  found  everywhere  and  are  unknown  bc}'ond 
their  own  narrow  precinct,  they  will  naturally  oppose  intrud- 
ers into  their  province.  And  yet,  why  should  not  the  people 
have  a  right  to  choose  their  representative  where  they  can 
find  the  best  man,  since  all  represent  the  whole  country?  In 
the  elections  to  the  state  legislatures  it  is  to  a  considerable 
extent  state  law,  we  believe,  that  the  person  elected  must 
reside  within  the  limits  of  the  district.  Under  the  constitu- 
tion of  the  United  States  a  member  of  congress  must  reside 
in  the  state  from  which  he  comes,  but  not  necessarily  in  the 
district  which  sends  him.  Thus  a  man  in  the  city  of  New 
York  might  represent  the  district  around  Buffalo.  But  very 
seldom  has  an  example  of  this  occurred.  It  seems  to  me  to 
be  a  pity  that  widely  known  and  highly  esteemed  men  should 
not  be  eligible  everywhere,  as  in  Great  Britain  and  France, 
where  the  principal  men  are  sought  after,  on  account  of  some 
connection  of  their  ancestors  or  their  own  reputation,  by  a 
body  of  electors  they  have  never  seen.  The  lot  of  England 
might  have  been  quite  different  from  what  it  is,  if  instead  of 
this  usage  it  had  been  necessary  for  a  member  of  the  house 
of  commons  to  be  an  actual  resident  of  the  .shire  or  borough 
which  returned  him  ;  if  indeed,  as  long  as  the  rotten  borough 
system  continued,  that  had  been  possible.  The  representa- 
tives from  small  boroughs  would  have  carried  little  knowledge 
and  no  experience  into  their  new  sphere,  and  would  have 
been  liable  to  be  browbeaten  or  bribed.  The  men  on  the 
otlier  hand  from  abroad,  chosen  by  small  places,  would  feel 
grateful  to  them  for  their  choice,  and  be  mindful  of  their  in- 
terests. But  far  beyond  this  advantage  is  that  of  raising  up 
a  body  of  statesmen  able  to  give  themselves  to  politics, 
tolerably  sure  of  being  called  into  the  steady  service  of  their 
country,  and  to  a  great  degree  in  situations  which  place 
them  above  corrupting  influences. 


DEPARTMENTS  OF  GOVERNMENT  IN  A  STATE. 


307 


§  224. 

The  upper  house,  as  we  have  seen,  is  marked  out  in  some 
. .    I     countries  by  the  conditions  of  society  and  by 

Compositmn  01  an  J  J 

upperhouse.  historical  traditions.  A  body  of  landholders, 
having  certain  jurisdictional  rights,  with  a  territory  over  which 
they  were  also  military  chiefs,  constituted  the  nucleus  of  the 
estate  of  nobles  in  the  middle  ages.  England  was  happy  in 
escaping  the  extreme  disintegration  of  the  feudal  kingdoms  ; 
it  was  more  in  its  internal  relations  a  dukedom  than  a  monar- 
chy. The  kings  of  the  house  of  Anjou  strove  for  power  and 
met  a  stout  resistance  from  nobles  and  clergy  ;  magna  carta 
was  won  by  these  estates,  yet  it  took  the  commons  under 
equal  protection.  Then  the  nobles  under  Henry  III.  called 
on  the  commons  to  share  the  government  with  them.  The 
nobility  of  England  on  the  whole  have  been  a  great  help  in 
resisting  the  excessive  power  of  the  sovereign  and  in  securing 
the  liberties  of  the  country. 

The  house  of  lords  contained  at  first  those  who  had  titles 
of  nobility  in  their  own  right,  together  with  bishops  and  ab- 
bots. As  the  king  was  the  fountain  of  honor,  he  could  enno- 
ble a  person  or  a  family,  and  give  him  in  personal  right  or 
with  his  successors,  the  right  of  membership  in  this  assembly. 
The  wearer  of  a  title,  civil  or  ecclesiastical,  might  be  consid- 
ered as  a  representative  of  an  estate  with  the  tenants  on  it, 
and  of  a  family,  diocese,  or  convent.  In  the  change  of  reli- 
gion under  Henry  VIII.,  the  abbots  disappeared  from  the 
house  of  lords  and  left  no  successors.  On  the  other  hand,  the 
recruiting  of  the  house,  as  it  has  been  carried  on  for  a  long 
time,  has  been  singidarly  wise.  The  distinguished  men  of 
the  law,  the  great  generals,  to  some  extent  in  modern  times 
the  great  bankers,  a  few  of  the  literary  men  and  the  prin- 
cipal statesmen,  have  been  called  up  into  the  house  of  lords, 
and  thus  the  tendency  to  stagnation  of  intellect  and  physical 
degeneracy  which  is  incident  to  an  old  n()l)ilit)-  has  been 
checked,  if  not  more  than  counterbalanced.  Thus,  too,  the 
line  which  was  likely  to  become  too  marked  between  the  no- 


3o8 


POLITICAL  SCIENCE. 


bility  and  the  untitled  commons  has  been  made  weaker  by 
the  ele\-ation  of  numbers  from  the  commons  to  the  peerage, 
by  the  intermarriages  between  these  orders  (forbidden  in 
some  countries  in  order  to  keep  the  blood  pure),  and  by  the 
fact  that  the  children  of  noblemen  are  commoners  in  the  eye 
of  the  law.  That  the  house  of  lords  is  destined  to  be  per- 
petual, who  would  dare  to  prophesy  ?  With  all  the  influence 
which  it  has  thrown  on  the  conservative  side,  obstructing 
measures  sometimes  for  years  before  it  would  yield,  it  has  no 
such  self-subsistence  as  to  be  able  long  to  resist  the  made-up 
opinion  of  the  country.  Relatively,  for  a  long  time  it  has  been 
growing  weaker,  while  the  house  of  commons  has  been  grow- 
ing stronger. 

The  principle  of  the  house  of  lords  is  one  fitted  only  to  a 
somewhat  aristocratic  state  of  society.  Would  or  could  such 
a  house,  if  the  democratic  feeling  which  dislikes  all  hereditary 
privilege  were  to  gain  an  ascendancy  in  England,  be  able  to 
stand  its  ground  ?  Would  it  not  be  pronounced  an  absurd 
thing  that  a  son  should  succeed  to  his  father's  profession  when 
he  had  no  talent  for  it  at  all  ;  and  does  not  the  constant  in- 
fusion of  fresh  blood  into  the  house  of  lords  show  the  fear 
that  this  body  would  otherwise  become  too  weak  for  its  office 
of  legislation,  and  sink  into  contempt  ?  Probably,  however, 
if  this  house  should  fall  under  the  blows  of  a  growing  democ- 
racy, the  good  sense  of  Great  Britain  would  try  to  find  a  sub- 
stitute. 

The  United  States  were  supplied  with  a  happy  suggestion 
how  their  second  chamber  should  be  constituted  by  the  ele- 
ment of  equality  among  the  states,  which  voted  as  equal 
powers  under  the  old  confederation,  and  came  into  the  con- 
vention for  framing  the  constitution  as  equals.  The  smaller 
states,  in  fact,  had  such  a  fear  of  being  oppressed  by  the 
larger  that  they  managed  to  have  a  provision  inserted  in  the 
new  constitution,  that,  while  all  other  articles  might  be  altered 
in  the  legal  way,  the  provision,  which  made  the  states  equal 
in  the  senate,  should  be  unchangeable.  This  is  the  utmost 
that  ^ could  be  done.     Doubtless  at  times  there  have  been 


DEPARTMENTS  OF  GOVERNMENT  IN  A  STATE.  309 

men  who  desired  to  have  a  representation  in  the  senate  pro- 
portional to  the  population  of  the  states,  but  hitherto  the  sen- 
ate has  maintained  itself  in  the  confidence  of  the  people  as 
one  of  the  best  parts  of  the  constitution. 

Another  most  important  characteristic  of  the  senate  is,  that, 
unlike  most  chambers  elected  by  the  people,  the  members' 
terms  expire  on  such  a  plan  that  one  third  is  recruited  every 
two  years.  This  gives  a  certain  slowness  of  movement  to  the 
body,  and  a  permanence  of  life,  which  stand  in  antagonism 
to  the  other  branch  of  the  legislature,  and  break  the  force  of 
parties  or  of  novel  opinion  by  an  earlier  or  a  more  mature  opin- 
ion. The  tenure  of  a  senator's  place  for  six  years  gives  a 
longer  experience  to  this  house  ;  and  their  position,  as  advis- 
ers of  the  president,  and  as  having  the  power  to  reject  his 
nominations,  invests  them  with  a  vast  influence,  something 
like  that  of  oligarchy,  which  was  unforeseen  at  the  forming 
of  the  constitution. 

The  other  upper  or  second  chambers  of  modern  constitu- 
tional governments,  so  far  as  they  had  no  historical,  but  rather 
an  artificial  foundation,  suggest  several  inquiries  touching  the 
principle  on  which  this  part  of  the  legislature  should  be 
founded.  And  first,  is  it  wise  or  politic,  when  such  a  legisla- 
tive house  has  not  come  down  from  olden  time,  to  introduce 
it  in  the  shape  of  an  aristocracy.  Montesquieu  thought  that 
the  existence  of  rich,  powerful  families,  with  a  historic  name, 
demanded  tliat  a  special  representation  should  be  given  to 
them,  or  they  would  become  enemies  of  the  established  state 
of  things.  Mr.  Guizot  held  the  same  opinion.  There  is  a 
class,  he  says,  living  on  the  revenues  of  their  lands  or  person- 
al property,  and  another,  of  men  living  on  their  labor  with- 
out land  or  capital.  Each  of  these  essentieil  elements  of  every 
society  needs  a  distinct  representation,  otherwise  one  would 
be  sacrificed  to  the  other,  and  things  would  end  in  plunder  or 
anarchy.  * 

Shall  we  then  say,  as  M.  Lavcleye  remarks,  that  the  contest 


*  Cited  by  Lavelcyc,  u.  s.,  chap.  30. 


POLITICAL  SCIENCE. 


benveen  capital  and  labor  is  so  great,  so  incapable  of  being 
settled,  that  the  representatives  of  the  two  must  be  kept 
apart  ?  But  will  this  be  a  cure,  will  it  not  rather  be  a  pro- 
vocative to  more  bitter  strife  which  will  end  in  an  overthrow 
of  the  constitution  ?  The  position  of  I\Ir.  Guizot,  again,  is 
not  a  sound  one.  The  chambers  are  not  now  and  never  were 
elected,  the  one  by  men  with  land  and  capital,  the  other  by 
men  without  land  or  capital.  There  is  an  unbroken  row  of 
fellow-men,  starting  from  the  poorest  day  laborer  and  ending 
in  the  richest  millionaire.  You  cannot  divide  it  in  twain  any- 
where, and  if  you  could  you  would  rend  society.  If  an  old 
aristocracy  actually  exists,  and  the  feelings  of  the  nation, 
their  habits,  their  history,  make  them  satisfied  with  it,  very 
well.  Compose  your  upper  chamber  of  such  materials,  if 
you  are  sure  that  no  change  will  soon  come.  But  in  an  age 
like  this,  when  the  low  arc  rising  in  their  power  and  claims 
and  the  high  falling  in  their  influence,  the  foundations  of  a 
newly  constructed  chamber  would  be  tottering,  if  they  rested 
on  aristocracy.  The  French  chambers  of  peers  and  the  sen- 
ate crumbled  to  pieces  at  the  first  blow  of  revolution.  Such 
bodies  will  be  apt  to  feel  that  they  are  stronger  than  they 
really  are  ;  they  will  attempt  backward  movements  until  a 
democracy  is  roused,  and  then  they  will  abandon  the  field 
without  a  struggle.  The  supports  of  an  aristocracy  must  be 
real  and  historical ;  artificial  ones  will  prove  of  no  avail. 

The  opposition  made  to  two  chambers,  on  the  other  hand, 
upon  the  ground  that  it  is  not  democratic,  deserves  no  con- 
sideration. One  argument  against  it  is  that  of  the  Abbe 
Sieyes,  that  a  people  cannot  have  two  wills  at  the  same  time 
on  the  same  subject.  Hence,  the  legislative  body  which  rep- 
resents the  people  ought  to  be  essentially  one.  One  of  the 
houses,  therefore,  is  a  clog  on  the  otherwise  free  movements 
of  the  community.  But  the  question  is  not  in  legislation  what 
is  actually  the  will  of  the  people,  but  what  ought  to  be,  what 
would  it  be  if  they  were  in  their  representatives'  place,  in- 
vested with  their  powers  of  hearing  and  deciding.  The 
people,  by  establishing  a  legislature  to  which  the  making  of 


DEPARTMENTS  OF  GOVERNMENT  IN  A  STATE.  31I 


laws  without  further  reference  to  the  pubh'c  will  is  entrusted, 
have  declared  that,  in  their  collective  capacity,  they  are  not 
able  to  make,  nor  equal  to  the  task  of  making,  the  best  laws, 
and  they  commit  this  to  a  smaller  body  in  whom  they  confide. 
Still  further,  it  is  a  harder  problem  often  to  find  out  what,  in 
strictness  of  speech,  is  the  will  of  the  people,  than  it  is  to  find 
out  what  laws  and  measures  are  best  for  the  common  welfare. 
The  opinion  and  will  of  every  modern  community  changes 
with  rapidity,  so  that  a  minority  becomes  a  majority,  and  a 
majority  would  adopt  different  measures  than  it  did  when  it 
elected  the  existing  legislature  ;  and  thus  we  might  say  with 
perfect  truth  that  two  houses,  elected  or  renewed  at  different 
times,  would  each  express  the  current  opinion  at  the  time  of 
its  election,  and  on  the  whole,  by  their  joint  action,  be  better 
exponents  of  the  sober  judgments  of  the  community  than  one 
alone  ever  could  be. 

§225. 

Taking  this  view  of  the  changes  of  opinion  and  policy  in 
Difference  of  func-  ^  Constitutional  government,  we  must  deny  that 
tions  of  t«o  hous«.  one  chamber  ought  to  represent  the  conserva- 
tive, and  one  the  progressive  element  in  the  constitution  or 
in  opinion.  In  matter  of  fact  this  is  the  case  under  the  Eng- 
lish constitution,  and  thus  a  theory  has  arisen  that  some  such 
balance  of  powers  must'  be  found  in  all  constitutions.  Both 
houses  ought  to  represent  public  wisdom  and  intelligence  as 
far  as  possible  ;  but  if  they  were  chosen  at  the  same  time  and 
continued  for  the  same  time  in  office,  they  would  be  of  little 
use  ;  indeed,  they  would  be  under  the  temptation  of  differ- 
ing, in  order  that  it  might  be  seen  that  they  held  indepen- 
dent opinions,  or  possessed  superior  ability.  The  conserva- 
tive and  progressive  tendencies  ought  not  to  belong  to  a  part 
of  the  political  machine,  but  both  chambers  should  be  con- 
servative, both  progressive  ;  although,  if  elected  at  different 
times,  they  would  have  tlicse  qualities  for  the  time  being  in 
different  proportions. 

The  true  view  of  the  use  of  two  houses  is  fu  st,  that  b)-  this 


312 


POLITICAL  SCIENCE. 


means  hasty  legislation  is  prevented.  Each  house,  knowing 
that  the  propositions  which  originate  in  it  will  be  carefully 
scrutinized  by  the  other,  will  be  rendered  more  careful,  niore 
deliberate,  more  awake  to  objections  ;  even  its  own  reputa- 
tion is  at  stake  before  the  public  ;  one  house  cannot  be  ex- 
pected to  have  a  very  tender  regard  for  the  good  name  of 
the  other,  but  will  be  only  too  ready  to  find  fault  with  its 
conclusions.  Mr.  Mill  attaches  little  weight  to  this  argument 
— for,  says  he,  "  it  must  be  a  very  ill-constituted  representa- 
tive assembly,  in  which  the  established  forms  of  business  do 
not  require  many  more  than  two  deliberations."  It  is  true, 
that  if  drafting  acts  and  passing  them  with  the  forms  pre- 
scribed by  parliamentary  law  were  all  that  a  second  house 
were  needed  for,  it  would  not  seem  to  be  of  much  use  ;  al- 
though with  all  these  forms,  with  the  three  readings  and  the 
debates,  with  the  reports  of  committees  on  the  different 
branches  of  business,  legislation  often  goes  on  in  the  most 
careless,  the  clumsiest  manner  ;  many  members  of  legislative 
assemblies,  it  is  believed,  have  not  examined  the  projects  of 
bills  on  which  they  are  called  to  vote,  many  are  unfaithful  in 
giving  their  attention  to  business  aside  from  their  political 
duties.  There  are  also  excitements  in  one  house  which  do 
not  reach  the  other  ;  every  public  body  is  influenced  by  the 
temper  and  bias  of  particular  members,  and  a  house  large 
enough  to  e.xcite  the  debaters  into  passion  will  be  more 
liable  to  these  flaws  than  one  the  composition  of  which  does 
not  disturb  the  calm  that  should  belong  to  a  deliberative 
assembly.  I  believe  that  the  confidence  given  to  the  "  bica- 
meral "  system  in  the  United  States  rests  very  much  on  this 
feeling,  that  two  bodies  somewhat  differently  composed  will 
originate  more  careful,  better  digested  legislation  than  could 
be  expected  from  one. 

Another  advantage  of  two  chambers  is  that  the  evil  effect 
is  thereby  prevented  which  the  consciousness  of  having  only 
themselves  to  consult,  produces  on  the  minds  of  an\'  holders 
of  power.  This  consideration  is  urged  by  Mr.  Mill,  and  I 
give  it  nearly  in  his  language.    "It  is  important,"  says  he, 


DEPARTMENTS  OF  GOVERNMENT  IN  A  STATE.  313 


"  that  no  set  of  persons  should  be  able,  even  temporarily,  to 
make  their  sic  volo  prevail,  without  asking  any  one  else  for 
hi«  consent.  A  majority  .  .  .  composed  of  the  same  persons 
habitually  acting  together  .  .  .  easily  becomes  despotic  and 
overweening,  if  released  from  the  necessity  of  considering 
whether  its  acts  will  be  concurred  in  by  another  constituted 
authority."  The  remark  has  often  been  made,  I  believe,  in 
this  country,  that  a  legiskiture  where  one  political  party  is 
very  weak  will  often  show  a  much  more  intolerant  and  auda- 
cious spirit,  and  give  rise  to  worse  legislation  than  where 
there  is  a  considerable  and  an  able  minority  to  watch  them. 
They  become  an  oligarchy,  if  not  opposed.  It  would  be 
something  the  same,  if  a  legislative  chamber  had  no  other  to- 
control  it.    The  chance,  too,  of  corruption  is  less. 

Mr.  Mill  remarks  further,  that  two  chambers  foster  "  con- 
ciliation, a  readiness  to  compromise,  a  willingness  to  concede 
something  to  opponents,  and  to  shape  measures  so  as  to  be 
as  little  offensive  as  possible  to  persons  of  opposite  views  ; 
and  of  this  salutary  habit,  the  mutual  give  and  take  (as  it  has 
been  called)  between  two  houses  is  a  perpetual  school — use- 
ful as  such  even  now,  and  its  utility  would  probably  be  even 
more  felt  in  a  more  democratic  constitution  of  the  legisla- 
ture." This  remark  has  some  justice  in  it,  but  needs,  we 
think,  to  be  qualified.  A  legislature,  with  an  aristocratic 
house  of  lords  or  chamber  of  peers,  will  resort  to  continual 
compromises  in  order  to  make  any  headway,  for  there  will 
always  be,  or  seem  to  be,  an  opposition  of  interests  between 
the  constituencies  of  the  two.  Hence,  there  must  be  perpet- 
ual concessions ;  or  much  legislation  once  begun  must  be 
abandoned.  In  such  a  case  the  aristocratic  chamber — if  the 
weaker  of  the  two,  as  it  naturally  will  be— must  in  the  end 
yield.  The  remarkable  history  of  the  reform  bills  in  1S32 
reads  a  lesson  which  was  repeated  by  the  abolition  ot  the 
corn-laws  in  1846.  In  the  first  case  after  long  resistance,  the 
house  of  lords  yielded  so  fnr  that  a  number  of  foes  of  the  bill 
announced  their  intention  of  staying  away  from  the  final  vote, 
rather  than  to  have  a  majority  i)roduced  by  the  exercise  of 


3U 


POLITICAL  SCIENXE. 


the  dangerous  prerogative  of  creating  a  new  batch  of  peers. 
Such  compromises  often  repeated  would  ruin  any  house 
which  could  obstruct  legislation  without  defeating  it ;  the 
house  would  fall  into  contempt.  But,  in  a  democratic  coun- 
try like  ours,  if  the  two  houses  were  of  opposite  politics, 
neither  would  \-ield  except  so  far  as  to  make  compromises 
in  small  particulars.  And,  indeed,  Mr.  Mill  remarks  that 
"in  a  really  democratic  state  of  society,  the  house  of  lords 
would  be  of  no  value  as  a  moderator  of  democracy;"  that 
(the  really  moderative  power)  "in  a  really  democratic  con- 
stitution, must  act  in  and  through  the  democratic  house." 

Mr.  Mill  regards  the  full  representation  of  minorities  in  a 
single  house  as  a  more  effective  centre  of  resistance  to  dan- 
gerous legislation  than  any  which  a  second  chamber  could 
afford,  which  would  be  open  to  the  imputation  of  class  in- 
terests adverse  to  the  majority.  If,  however,  a  wisely  con- 
servative body  were  felt  to  be  necessary,  the  office  of  which 
would  be  to  moderate  democratic  ascendancy,  the  best  form 
in  which  it  could  appear  would  be,  he  thinks,  one  following 
somewhat  the  pattern  of  the  Roman  senate.  It  should  be  a 
chamber  of  statesmen,  as  contrasted  to  the  people's  chamber 
— "  a  council  composed  of  all  living  public  men  who  have 
passed  through  any  important  political  office  or  employment. " 
Such  a  body  would  not  only  moderate,  but  also  impel.  It 
should  be  confined  to  men  who  have  been  in  a  legal,  political, 
military  or  naval  emploj'ment.  But  scientific  and  literary 
eminence  are  too  indefinite  and  disputable  "  for  supplying 
such  a  senate  with  members.  ...  If  the  writings  by  which 
reputation  has  been  gained  are  unconnected  -with  politics, 
they  are  no  evidence  of  the  special  qualities  required,  while, 
if  political,  they  would  allow  successive  ministries  to  deluge 
the  house  with  party  tools."  To  which  might  be  added  that 
literary  men  are  seldom  successful  in  politics.  They  are 
either  impractical  or  conceited,  or  too  fine  for  the  coarse 
blows  of  public  assemblies,  and  often  unable  to  stand  up  for 
their  views  in  debate. 

It  is  perhaps  superfluous  to  criticise  a  project  which  is 


DEPARTMENTS  OF  GOVERXMEXT  IN  A  STATE. 


never  likely  to  go  beyond  the  mind  of  its  author,  but  we  may 
add  in  brief  that  the  Roman  senate  was  not  a  legislative,  but 
an  administrative  body  ;  that  it  represented  a  wealth}-  aris- 
tocracy which  kept  offices  admitting  into  the  senate  chiefly 
in  the  hands  of  the  optimates  ;  that  it  managed  affairs  so 
selfishly  as  to  create  an  opposition  headed  by  some  of  its 
members  which  finally  crushed  it  ;  and  that  it  is  the  best  jus- 
tification of  the  empire  that  the  senate  was  unequal  to  its 
work.  No  such  body  could  last  long  in  a  state  verging 
towards  a  government  either  of  the  imperial  or  ochlocratic 
kind.  It  would  indeed  have  some  excellent  characteristics, 
as  including  "  all  the  talents"  of  a  political  kind  in  a  country, 
but  the  members  in  general  would  be  old  with  the  conserva- 
tism of  fixed  ideas,  which  is  the  worst  possible  conservatism. 
Who  would  expect  legislation  to  be  made  wiser  by  old  gouty 
admirals  and  generals  accustomed  to  be  obeyed,  or  by  old 
judges  who  are  of  all  men  most  attached  to  the  existing  sys- 
tem of  legislation. 

If  one  of  the  chambers  were  small  and  had  the  confidence 
of  the  people,  its  influence  might  be  cemented  by  giving  to 
it  certain  special  powers  of  a  somewhat  administrative  char- 
acter. Thus  the  treat\'-making  power,  which  in  monarchies 
has  belonged  to  the  king,  and  which  needs  secrecy  for  its 
success  in  negotiations,  must  in  all  forms  fall  more  especially 
to  the  executive  ;  and  yet  treaties,  being  wide-sweeping  in 
their  effects  on  law  and  on  constitution,  ought  not  to  be  placed 
beyond  the  reach  of  the  legislature.  Thus  a  commercial 
treaty  may  establish  such  relations  between  two  countries,  as 
materially  to  influence  taxation  and  restrict  the  power  of  a 
legislature.  In  I-^ngland  the  control  of  parliament  over  treaties 
is  only  indirect.  Public  opinion  may  deter  a  cabinet  from 
making  an  obnoxious  treat}',  or  the  house  of  commons  may 
refuse  grants  of  monc}'  necessary  to  carry  one  into  effect. 
In  the  United  States  the  senate  has  the  power  of  sanctioning 
treaties,  and  the  house  of-  representatives  has  no  other  con- 
trol except  that  of  refusing  to  vote  the  money  which  the 
treaty  calls  for.    When  there  is  no  such  call,  a  treaty  goes  on 


3i6 


POLITICAL  SCIENXE. 


to  its  fulfilment  at  once  ;  when  there  is  such  a  call,  the  house 
is  morally  bound  to  vote  the  money,  because  the  treaty  is 
valid  and  their  assent  is  only  a  form.  Such  a  function  as 
the  treaty-making  one  belongs  to  a  branch  of  the  legislature 
possessing  the  requisite  qualifications,  and  is  not  in  theory, 
nor  ought  it  to  be  in  practice,  an  exclusively  executive  act. 
So  such  a  branch  might  have  a  voice  in  appointments  ;  and  in 
a  confederation,  perhaps,  in  adjusting  some  of  those  questions 
which  can  arise  between  the  government  of  the  union  and 
that  of  a  particular  state.  On  the  other  hand,  the  power  of 
originating  money,  bills,  and  some  others,  can  best  be  lodged, 
as  in  England,  the  United  States,  and  in  other  modern  con- 
stitutional governments,  in  the  more  popular  branch. 

It  was  natural  in  England  that  the  great  mass  of  tax-payers 
should  by  their  representatives  have  the  leading  voice  in  de- 
termining the  amount  and  character  of  the  tax.  In  the 
United  States  not  only  the  precedent  of  the  English  constitu- 
tion led  in  the  same  direction,  but  the  just  feeling  that  the 
people's  representatives  rather  than  those  of  the  states  ought 
to  originate  measures  that  must  press  on  all.  Yet,  as  there  is 
no  such  marked  contrast  between  the  senate  and  the  house  of 
representatives  as  there  is  between  the  lords  and  the  com- 
mons, our  constitution  allows  the  senate  to  amend  money  bills. 

§  226. 

In  all  modern  constitutions  which  are  reduced  to  writing 
.Limitation  on  le-  fuuctious  of  the  legislature,  and  of  the 

gisiative  power.  chambcrs,  if  there  are  two,  are  minutely  de- 
scribed. This  seems  to  be  important,  because  the  executive 
and  legislature  are  in  danger  of  invading  each  other's  field, 
and  the  executive,  being  always  active,  can  use  its  force  ef- 
fectively when  the  other  is  at  rest.  In  general  the  constitu- 
tions of  the  German  powers  are  so  contrived  that  executive 
action  is  as  little  hampered  as  possible.  Great  Britain  differs 
in  its  constitution  from  all  other  free  states  in  having  no 
written  constitution,  and  especially  in  having  no  limits  placed 
to  the  power  of  parliament.     The  parliament  of  England 


DEPARTMENTS  OF  GOVERNMENT  IN  A  STATE. 


has  deposed  one  or  two  kings,  has  declared  another  to  have 
abdicated  and  left  the  throne  vacant,  has  changed  the  succes- 
sion so  as  to  exclude  a  Catholic  who  might  be  the  next  heir 
to  the  crown  ;  it  has,  in  the  form  of  a  convention,  restored  the 
monarchy  and  a  dynasty — not  to  speak  of  such  acts  as  were 
done  by  the  long  parliament  in  subversion  of  the  existing 
framework  of  government.  The  omnipotence  of  the  legis- 
lature in  Great  Britain  is  not  feared,  because  any  essential 
change  of  policy  or  violence  done  to  public  opinion  would 
arouse  such  a  storm  of  public  feeling  that  a  dissolution  would 
follow,  and  a  new  election,  perhaps  a  new  cabinet,  be  the  re- 
sult. This  is  the  great  excellence  of  the  English  constitution, 
that  it  rests  on  precedent,  that  it  bends  slowly  and  against 
opposition  to  the  introduction  of  new  measures,  and  thus  has 
for  its  foundation  the  will  of  the  community  which  is  mani- 
fested directly  and  violently  only  at  great  crises.  It  admits 
of  the  rule  that  the  nation  is  sovereign  and  not  the  govern- 
ment, but  only  applies  it  once  or  twice  in  a  century.  No 
other  people  could  do  the  same,  for  no  other  people  has  had 
such  a  political  training.  Nor  can  we  believe  that  Great 
Britain  can  always  retain  the  same  good  habits,  and  have  the 
same  happy  balance  of  powers  and  moderation  in  its  gov- 
erning classes.    The  maxim  hitherto  has  been  : 

"  So  let  the  change  which  come<;  be  free 
To  iiigroove  itself  in  that  which  flies, 
And  work,  a  joint  of  state  that  plies 
Its  office,  moved  witli  sympathy." 

But  this  is,  as  the  poet  continues, 
\ 

"  A  saying  hard  to  shape  in  act  ; 
For  all  the  past  of  time  reveals 
A  bridal  dawn  of  thunder-peals 
Whenever  thought  hath  wedded  fact." 

Hitherto  the  prevailing  practical  character  of  the  nation  has 
prevented  "  thought  "  from  taking  an  abstract  and  a  revolif- 
tionary  turn.  Can  this  be  so  in  time  to  come  ?  Can  gradual 
encroachments  of  democracy,  connected  with  changes  in 


3i8 


POLITICAL  SCIENCE. 


industry  and  commerce,  and  with  public  disasters,  fail  in  the 
future  to  subvert  or  essentially  modify  the  constitution  ? 
Then  it  will  be  necessary  to  give  up  trust  in  past  habits  and, 
probably,  to  frame  a  written  constitution,  which,  rather  than 
steady  habits  and  practical  wisdom,  shall  be  the  mainspring 
in  sustaining  the  interests  of  the  nation  for  the  time  to  come. 

Where  a  constitution  in  a  written  form  exists,  it  limits  the 
action  of  the  several  departments,  declares  what  they  can  do 
and  what  they  cannot,  and  endeavors  to  secure  a  harmony 
and  distinct  action  of  them  all.  One  Avould  think  that  the 
minute  provisions  of  many  modern  constitutions  were  suffi- 
cient for  all  possible  cases  of  difficulty  that  can  arise. 

Yet  in  the  United  States  there  have  been  not  a  few  com- 
plaints against  the  misconduct  of  legislatures,  and  not  a  few 
charges  of  corruption.'"  Several  of  the  states,  especially 
Illinois,  Pennsylvania,  and  Missouri,  in  new  or  revised  con- 
stitutions, have  attempted  to  limit  their  powers  in  several 
ways.  One  of  the  most  important  is  that  no  special  laws 
shall  be  passed  for  incorporations,  but  that  a  general  law 
shall  cover  all  cases.  It  is  thought  that  this  will  prevent  a 
large  part  of  the  suspicion  and  bad  repute  that  has  of  late 
years  fastened  on  these  bodies,  and  will  diminish  what  is 
vulgarly  called  the  lobby  or  gathering  of  agents  of  companies 
and  others,  who  have  business  before  legislatures,  and  are 
supposed  to  use  unlawful  influences  with  them.  Other  pow- 
ers that  need  to  be  taken  away  from  such  bodies  are  the 
granting  of  pardons  and  of  divorces,  the  election  of  judges 
for  the  higher  courts,  the  furnishing  of  aid  to  companies  for 
benevolent  purposes,  or  to  those  engaged  in  trajisportation  ; 
but,  above  all,  the  limitation  of  the  power  to  borrow  money 
on  the  credit  of  the  state,  and  to  lay  a  ta.x:  beyond  a  certain 

*  Burke  (Thoughts  on  the  causes  of  present  discontents,  i.,  389, 
Bolm's  ed.),  speaking  of  the  want  of  "a  decent  attention  to  public  in- 
terest in  the  rei)resentatives,"  sees  no  other  wa\-  of  preserving  such 
attention  but  the  "  interi)Ositinn  of  the  people  itself."  This,  however, 
he  regards  as  an  extreme  remedy  only.  To  limit  tiie  legislature  con- 
stitutionally, is  hardly  consistent  with  the  nature  and  history  of  the 
British  parliament. 


DEPARTMENTS  OF  GOVERNMENT  IN  A  STATE.  319 


percentage,  unless  in  certain  great  and  definite  exigencies. 
Some  of  these  restrictions  already  appear  in  the  constitutions 
of  a  number  of  the  states  ;  thus  divorces  are  chiefly  confined 
to  the  jurisdiction  of  courts  of  justice,  which  were  formerly, 
after  the  example  of  the  English  parliament,  granted  by  the 
legislature. 

Other  restrictions  that  deserve  mention  relate  to  the  time 
of  holding  office,  the  length  of  the  sessions,  the  power  of  the 
executive  to  dissolve  the  chambers,  and  the  veto. 

1.  No  general  rule  can  be  given  except  that  a  very  short 
term  of  legislative  service,  such  as  prevails  in  many  of  the 
states  of  our  union,  is  destructive  of  good  legislation,  and 
calls  forth  unnecessary  political  excitements.  If  the  reforms 
introduced  into  several  of  the  newest  constitutions  shall  be 
found  to  abridge  the  length  of  sessions,  it  will  be  quite 
possible  to  have  but  one  in  two  years,  and  at  all  e\  ents  the 
term  of  two  years  for  holding  the  office  will  be  found  to  be 
better  than  that  of  one.  But  the  plan  of  periodical  renewal 
which  I  shall  presently  speak  of  is  probably  better  still. 

2.  In  regard  to  the  length  of  sessions  a  plan  has  been  hit 
upon  in  some  of  the  United  States,  which  is  worthy  of  men- 
tion :  it  is  to  give  the  legislators  either  an  allowance  of  so 
much  for  the  session,  in  which  case  they  would  have  a  motive 
to  despatch  business,  or  to  pay  them  so  much  per  diem  for  a 
certain  number  of  days,  after  which  they  must  pay  their  own 
expenses,  or,  finally,  to  provide  that  the  session  shall  close 
at  a  certain  date.  Wiienever  the  useless  and  even  hurtful 
power  of  special  legislation  is  tiiken  away,  it  will  be  easy  to 
close  sessions  within  a  reasonable  period. 

3.  The  power  to  dissolve  the  chambers  or  estates  was  natu- 
rally lodged  in  the  mediaeval  suzerain,  for  he  called  tiicm 
together  for  his  own  purposes.  The  uses  of  the  power  in 
the  hands  of  the  modern  sovereign  in  England  we  have  seen  ; 
in  fact,  it  has  appeared  to  be  the  hinge  on  which  everything 
turned,  liut  ought  the  same  power  to  be  lodged  in  the 
sovereign's  hands  in  other  constitutional  kingdoms,  or  in  that 
of  the  chief  officer  in  a  republic.    Apart  from  the  inconveni- 


320 


POLITICAL  SCIENCE. 


ences  which  the  exercise  of  such  a  prerogative  would  involve, 
it  does  not  seem  to  be  consistent  with  the  modern  system 
of  free  election  by  the  people.  If  the  legislature  expresses 
the  will  and  judgment  of  the  community,  why  should  it 
be  dissolved  ;  if  it  does  not,  either  the  executive  would  not 
wish  to  dissolve  it,  or  it  will  soon  terminate  peaceably  of 
itself.  To  give  the  executive  chief  the  right  to  do  something 
short  of  this,  to  say  to  the  lawmakers  "  you  have  been  here 
long  enough,  you  are  dissolved,"  would  be  felt,  at  least  in 
a  republican  state,  to  be  veritable  tyranny. 

4.  The  veto.  In  great  Britain,  where  the  king  parted  with 
a  certain  portion  of  his  power,  and  divided  the  legislative 
function  with  the  parliament,  it  was  to  be  expected  that  he 
should  reserve  his  power  of  accepting  or  rejecting  the  bills 
passed  by  the  houses  ;  and  it  could  be  presumed  that  he  rati- 
fied or  negatived  according  to  the  advice  of  his  constitutional 
advisers.  But  the  veto — which  was  absolute — has  long  been 
superseded  by  a  new  procedure  of  the  system  of  ministerial 
government.  Whenever  now  the  house  of  commons  is  in 
direct  ojai^osition  to  the  ministry  on  an  important  question 
involving  want  of  confidence  in  them  or  in  the  premier,  it  is 
the  usage  to  dissolve  parliament  and  try  a  new  election.  If 
the  election  turns  out  to  be  in  favor  of  the  ministry,  the  ob- 
noxious law  or  measure  may  no<fe  again  be  brought  up.  Other- 
wise the  ministry  resigns  ;  a  new  cabinet  is  appointed  which 
carries  the  bill  through,  and  the  sovereign  adds  his  sanction. 
In  other  w^ords,  the  king  will  not  oppose  the  voice  of  the 
nation  expressed  through  their  representatives.  That  is  a 
part  of  the  constitution,  on  the  observance  of  which  the  kingly 
office  depends.  During  the  reign  of  George  III.  it  was  under- 
stood that  he  regarded  it  as  a  violation  of  his  coronation- 
oath  to  remove  the  political  disabilities  of  the  Catholics,  and 
the  ministers,  who  would  have  favored  some  measure  looking 
that  way,  forbore  to  press  any  on  account  of  the  king's  scru- 
ples ;  but  probably  no  sovereign  hereafter  will  exercise  this 
old  prerogative  except  in  a  most  extreme  case. 

In  the  colonies,  where  the  governor  was  the  king's  reprc- 


DEPARTMENTS  OF  GOVERNMENT  IN  A  STATE.       32 1 


sentative,  the  same  right  was  claimed  and  exercised  ;  in  the 
colonies  under  royal  charters  the  particular  charter  might  or 
might  not  concede  the  privilege  to  the  governor.  Our  gene- 
ral constitution  contains  the  right  of  veto  in  another  form — 
in  that  of  overcoming  a  majority  less  than  two-thirds  of 
both  houses.  This  measure  of  the  value  of  the  president's 
disapproval  was  chosen  after  debate  in  preference  to  that  of 
three-fourths,  which  was  also  before  the  convention.  It  has 
also,  with  less  reason,  been  introduced  into  the  constitutions 
of  a  number  of  states,  while  a  few  have  put  into  the  chief 
magistrates'  hands  only  the  right  of  sending  back  a  bill  with 
his  objections,  which,  if  the  temper  of  the  houses  remains  the 
same,  is  of  no  force.  A  tJiird  form  of  the  veto  appears  in  the 
constitution  of  Norway,  where  the  immediate  effect  of  it  is  to 
suspend  action  during  the  session  of  the  storthing,  but  if  the 
two  next  storthings  agree  on  the  same  measure,  it  became  a 
law,  the  king's  successive  vetos  notwithstanding.  Thus  we 
have  the  absolute,  the  qualified,  and  the  suspensive  veto. 
The  liberiim  veto  of  the  kingdom  of  Poland  had  no  relation 
to  the  right  of  the  chief  magistrate,  but  denoted  the  power  of 
one  of  the  nobility  to  interfere  with  an  election  of  a  king. 
The  right  in  some  estates,  as  in  those  of  the  United  Provinces, 
to  prevent  the  states-general  from  declaring  war  and  doing 
certain  other  things  without  the  unanimous  consent  of  the 
provincial  estates,  was  simply  an  example  of  a  confederation 
in  which  the  members  gave  the  smallest  amount  of  power  to 
the  governing  body. 

The  French  constitutions  of  1793,  1795,  and  1848  gave  no 
power  of  veto,  if  we  are  not  in  error,  to  the  principal  ex- 
ecutive, but  under  both  empires  and  the  restored  monarchy 
this  power  was  again  put  into  the  hands  of  the  king  or  em- 
peror ;  and  the  tendency  of  democratic  opinion  is  to  make 
the  chief  of  the  state  little  more  than  a  president  of  a  council, 
with  the  necessary  executive  functions.  It  seems  to  some 
like  a  mingling  of  departments  to  give  the  right  to  an  execu- 
tive officer  of  interfering  with  the  proper  business  of  law- 
makers. But  this  is  a  deduction  from  theory  ratlicr  than 
vor..  II. — 21 


322 


POLITICAL  SCIENCE. 


from  experience.  There  is  no  absolute  separation  of  func- 
tions. Laws  are  so  important  in  their  bearings  on  the  inter- 
ests of  a  country,  so  apt  to  be  drawn  up  hastily  or  in  the 
spirit  of  party,  or  to  contravene  the  provisions  of  the  consti- 
tution, that  there  is  need  of  some  person  outside  of  the  legis- 
lative circle  to  examine  them  and  in  an  extreme  case  to 
prevent  their  passage.  Take  the  instance  of  a  law  which 
opposes  the  true  meaning  of  the  constitution.  The  chief 
magistrate  is  advised  by  his  legal  counsellors  that  this  is  un- 
constitutional, and  obstructs  its  passage.  How  much  incon- 
venience and  possibly  oppression  of  the  individual,  how  much 
expense  in  arguing  the  constitutional  question  is  prevented 
by  a  declaration  of  the  chief  magistrate  that  he  cannot  con- 
sent to  the  law.  It  would  be  unbecoming  and  might  lead  to 
bargaining  between  the  departments  if  he  expressed  his  opin 
ion  beforehand  or  during  a  debate  ;  he  has  no  right  to  a  fully 
formed  opinion  until  all  the  light  thrown  on  the  proposition 
by  the  two  houses  is  within  his  reach.  But  as  he  is  bound  to 
administer  the  laws  under  the  constitution,  he  must  form  for 
himself,  with  the  proper  assistance,  an  interpretation  of  the 
constitution  by  which  he  must  abide.  This  seems  to  require 
him  to  interpose  his  veto  in  all  cases  where  he  has  a  serious 
doubt,  and  to  do  this  beforehand  is  better  than  to  accept  a 
law  and  have  its  constitutionality  tried  afterwards.  Is  then 
a  chief  magistrate  armed  with  this  power  one  of  the  sources 
of  legislation  on  a  par  with  legislative  chambers  ?  Certainly 
not  to  the  full  extent  of  such  a  power,  otherwise  he  should 
have  the  right  of  proposing  laws  or  measures  through  his  cabi- 
net or  personally,  instead  merely  of  giving  advice  to  the  legis- 
lature on  public  affairs.  He  is  rather  a  ch-^ck  on  legislation, 
where  the  opinion  in  that  department  does  not  approach  to 
unanimity.  Thus  the  veto  of  our  president  is  a  part  of  that 
system  of  checks  of  which  there  are  so  many  in  the  Anglican 
political  system — a  system  which  reminds  one  of  an  old  house 
witli  buttresses  here  and  extensions  there,  that  has  served  the 
inhabitants  well  for  centuries,  but  which  needs  repairs  from 
time  to  time  in  order  to  last  through  coming  centuries. 


DEPARTMENTS  OF  GOVERNMENT  IN  A  STATE.  323 

I  must,  however,  express  my  opinion  that  the  veto  power 
in  a  democratic  repubhc  hke  ours  is  Hable  to  be  abused.  The 
president  ought  to  feel,  when  he  takes  his  office,  that  he  was 
elected  by  a  party  to  be  the  president  of  all,  just  as  a  repre- 
sentative elected  by  a  party  is  elected  to  be  the  representative 
of  all,  whether  they  all  had  a  vote  or  not,  and  whether  they 
voted  for  him  or  not.  But  there  is  great  danger  that  he  will 
not  feel  so,  or  rather  almost  a  certainty  that  he  will  not. 
Especially  when  in  the  changes  of  party  he  holds  office  while 
the  party  which  chose  him  has  become  a  minority,  he  will  be 
apt  to  use  this  formidable  weapon  of  the  veto  to  protect  laws 
or  measures  of  his  partisans  from  being  abrogated,  and  to 
prevent  those  of  the  reigning  party  from  passing.  If  the  party 
character  of  the  government  should  grow  more  and  more  pro- 
nounced, it  might  become  a  question  whether  the  president 
should  not  be  stripped  of  the  veto,  or,  at  least,  whether  the 
suspensive  form  of  it  might  not  be  substituted  for  the  present 
one,  so  that  two  successive  congresses — not  two  sessions — 
could  pass  a  law  over  the  president's  head.  As  for  the  value 
of  the  power,  looked  at  in  the  history  of  our  politics,  it  must 
be  admitted  to  have  been  exercised  in  many  instances  with 
great  advantage  to  the  country. 

^  227. 

If  there  is  in  a  state  a  class  of  independent  landholders  who 
Compensation  to  Can  afford  to  scrve  the  state  without  pay  for 

members  ol  tiic  Ic-  . 

gisbture.  their  services,  they  would  naturally  make  the 

most  disinterested  and  the  ablest  legislators.  And  if  men 
fitted  for  political  life  were  needed  who  could  not  thus  serve 
the  state  without  a  fee,  their  friends  might  help  them  forward. 
The  danger  in  this  plan  would  be  that  an  aristocratic  class 
and  their  interests  could  too  exclusively  control  legislative 
proceedings.  In  a  country  like  the  United  States  gratuitous 
services  of  this  kind  would  be  at  present  impossible.  In 
Great  Britain,  no  salaries  arc  paid  ;  the  same  is  true  of  the 
present  German  empire  and  the  late  French  empire.  If  a 
salary  is  given  to  members  of  a  legislature,  it  must  be  suffi- 


324 


POLITICAL  SCIENCE. 


cient  for  a  respectable  support.  If  it  were  too  small  to  sup- 
ply rational  wants,  many  of  the  best  men  in  the  land  would  be 
obliged  to  refuse  the  position,  and  others  might  accept  it  with 
corrupt  ends  in  view. 

Mr.  Mill  remarks  (Repres.  govt.)  that  "if,  as  in  some  of 
the  [British]  colonies,  there  are  scarcely  any  fit  persons  who 
can  afiford  to  attend  to  an  unpaid  occupation,  the  payment 
should  be  an  indemnity  for  loss  of  time  or  money,  and  not  a 
salary."  And  he  adds  that  if  an  adequate  remuneration 
were  attached  to  this  post,  the  occupation  of  a  member  of 
parliament  would  become  an  occupation  in  itself,  carried  on, 
like  other  professions,  with  a  view  chiefly  to  its  pecuniary  re- 
turns— and  would  become  an  object  of  desire  to  adv-enturers 
of  a  low  class,  of  such  as  would  be  incessantly  bidding  to 
attract  or  retain  the  suffrages  of  electors  by  promising  all 
things  honest  or  dishonest,  possible  or  impossible  ;  and  rival- 
ling each  other  in  pandering  to  the  meanest  feelings  and  most 
ignorant  prejudices  of  the  vulgarest  part  of  the  crowd.  And 
he  cites  Prof.  Lorimer  of  Edinburgh  as  remarking  that,  "  by 
creating  a  pecuniary  inducement  to  persons  of  the  lowest 
class  to  devote  themselves  to  public  affairs,  the  calling  of  the 
demagogue  would  be  formally  inaugurated." 

There  is  truth  in  these  statements,  but  they  are  somewhat 
extreme.  The  growth  of  demagogues  is  not  principally  due 
in  this  country  to  salaries,  nor  did  the  want  of  salaries  at 
Athens  keep  down  such  men  as  Cleon  and  Hyperbolus. 
The  salaries  in  the  United  States  are  too  small  to  breed  dema- 
gogues upon,  of  themselves  ;  the  motives  for  places  attained 
by  election  are  complex,  and  they  fasten  especially  on  the  love 
of  distinction.  If  there  were  no  compensation,  many  useful 
men  would  be  unable  to  serve,  and  it  is  quite  doubtful 
whether  the  men  of  the  meaner  sort  would  be  prevented  from 
seeking  office.  Every  country  must  be  judged  in  these  re- 
spects according  to  its  own  social  and  political  conditions. 


DEPARTMENTS  OF  GOVERNMENT  IX  A  STATE.  325 


§  228, 

In  some  countries,  as  in  England,  and  I  believe,  in  France 
Nomination  for  the  ^^so,  as  Well  as  in  the  southem  and  western 
legislative  office.  g^^^^g  ^j-  ^j^j^  Union,  men  have  offered  them- 
selves to  their  countrymen  as  candidates  for  the  legislature. 
In  the  northern  United  States,  for  the  most  part  this  has  been 
thought  indecorous,  an  obtrusion  of  one's  self  upon  the  pub- 
lic, and  instead  of  it  the  practice  is  that  nominations  are 
made  by  agents  of  parties  meeting  in  convention  or  caucus. 
This  is  the  most  objectionable  way  altogether  of  getting  into 
a  political  place,  and  involves  the  government  of  parties  by 
bad  men,  and  through  them  of  selecting  men  of  party, 
available  men,  unobjectionable  men,  or  weak  men  for  legisla- 
tors. I  propose  to  consider  this  mode  of  selecting  candidates 
again,  when  I  come  to  the  subject  of  party  government.* 

§  229. 

In  order  that  legislative  chambers  should  be  able  to  dis- 
Priviicges  of  mem- charge  their  duties  at  all  times,  in  some  coun- 

bcrs  of  a  legislature.  .•11  , 

tries  they  have  been  exempted  from  arrest  in 
going  to  the  place  of  their  duties  and  during  the  continuance 
of  the  sessions.  This  seems  to  be  reasonable,  for  it  is  quite 
conceivable  that  a  member  of  a  deliberative  assembly  might 
otherwise  be  deprived  of  his  vote  by  political  enemies. 
Crimes  of  violence,  however,  breaches  of  the  peace  on  the 
part  of  such  a  one,  ought  not  to  pass  unnoticed,  nor  the  trial 
for  them  be  put  off. 

Within  the  chamber  of  legislation  itself  the  members  are 
generally,  and  with  reason,  safe  from  all  outward  jurisdiction. 
As  for  rules  of  order,  and  rules  relating  to  the  introduction 
of  business,  the  reference  of  it  to  committees,  the  reports  and 
debate  upon  it,  the  repeated  readings,  and  the  like— all  this, 

*  Aristotle,  however,  was  offended  by  ])ersons  offering  themselves 
as  candidates  for  office.  He  says  of  tlie  .Spartan  i^rrusia  that  one 
cannot  approve  of  a  citizen's  personal  solicitations  for  office  which 
took  place  there.  (Pol.,  ii.,  6,  §  i8.) 


326 


POLITICAL  SCIENCE. 


having  been  elaborated  during  the  long  experience  of  the 
Anglican  race,  has  passed  over  in  part  to  other  nations 
which  have  come  more  lately  into  the  possession  of  "par- 
liamentary government,"  and  is  of  vast  importance  for 
securing  sober,  quiet,  and  wise  legislation.  Indeed,  but  for 
well  digested  rules,  enforced  by  a  speaker  or  presiding  officer, 
in  whose  hands  a  degree  of  arbitrary  power  is  necessarily 
lodged,  it  is  difficult  to  see  how  free  governments  could  well 
sustain  themselves  in  times  of  great  political  violence.  An 
executive  would  have  a  pretext  to  disperse  the  members  of  a 
tumultuary  assembly,  and  the  institutions  of  a  country  would 
be  in  danger  of  falling  into  contempt.  When  members  of 
such  a  body  forget  themselves  and  give  way  to  outbursts  of 
passion,  they  can  be  reprimanded  by  the  chairman,  and  it  is 
often  in  the  power  of  a  house  to  put  a  member  under  arrest  for 
an  offence,  as  well  as  to  expel  him  for  crime.  This  is  not  prop- 
erly punishment,  but  a  means  of  preserving  the  order,  digni- 
ty and  purity  of  the  department.  Such  a  house  has  also 
power  over  persons  not  members  who  are  allowed  to  be 
present.  Unless  the  constitution  prohibits,  the  proceedings 
may  be  secret,  and  an  audience  be  corfimanded  to  retire, 
or  particular  persons  may  be  arrested  by  the  propei  officer. 
Debates  ought  to  be  in  all  ordinary  circumstances  open, 
and  full  reports  of  proceedings  to  be  permitted.  In  some 
countries,  again,  persons  whose  testimony  is  held  to  be  im- 
portant— for  instance,  on  public  accounts  or  when  charges 
of  corruption  are  brought  against  members — may  be  sum- 
moned to  appear  before  the  house,  and  although  in  our  con- 
stitution it  is  not  expressly  said  that  congress  shall  have  such 
a  power,  this  seems  to  be  implied  in  the  very  nature  and  ne- 
cessities of  the  legislative  function.  Refusal  to  appear  is  con- 
tempt, and  exposes  to  arrest  by  the  officers  of  the  legislative 
body  and  to  imprisonment.  In  the  exercise  of  these  powers 
the  legislative  department  verges  on  the  judicial. 


DEPARTMENTS  OF  GOVERNMENT  IN  A  STATE.  32/ 


230. 

TJie  Judicial  Department. 

The  judge's  proper  office  is  retrospective  and  looks  at  a 
particular  fact  or  omission  in  the  past,  although 

Office  of  a  judge.        .  . 

a  judge  may  also  interpose  to  prevent  an  appre- 
hended injury.  We  have  seen  already  how  it  differs  from 
the  law-making  function,  which  properly  relates  to  determina- 
tion, binding  in  the  future,  and  from  the  executive  which  ap- 
plies those  laws  in  particular  cases.  In  the  case  of  the  indi- 
vidual man,  to  lay  down  rules  of  conduct  for  himself  answers 
to  the  legislative  function  of  society ;  to  act  on  those  rules 
or  carry  them  out  in  the  conduct  of  life  is  his  executive  power  ; 
to  sit  in  judgment  on  his  conduct  and  on  his  rules  is  his  judi- 
cial faculty.  If  society  were  at  a  standstill  and  no  new  re- 
lations were  to  arise,  there  would  be  no  need  of  a  law-making 
power,  but  rules  or  customs  would  endure  from  age  to  age. 
In  the  simpler  forms  of  society  there  is  comparatively  little 
need  of  what  we  call  an  executive  ;  but  then,  as  much  as  in 
more  advanced  stages  of  political  life,  men  will  steal,  commit 
acts  of  violence,  injure  their  fellows  in  property  and  in  other 
rights.  The  office  of  a  judge,  then,  is  always  necessary,  in 
the  infancy  and  in  the  manhood  of  the  world  ;  it  was  a  pri- 
meval institution  before  any  of  the  other  institutions  of  tribes 
or  cities  were  much  developed  ;  it  will  continue  to  be  equally 
important  until  men  become  perfectly  just.  If  such  a  time 
should  dawn  on  the  world  the  criminal  side  of  judicial  busi- 
ness would  cease,  and  the  civil  greatly  diminish  or  turn  into 
arbitration. 

At  first,  it  is  probable  that  the  functions  of  the  judge,  mili- 
tary chieftain,  and  priest  were  united  in  one  and  the  same 
person.*  In  patriarchal  life  the  head  of  the  clan,  or  some  one 
acting  under  him,  decided  cases  submitted  to  him  between 
man  and  man,  not  according  to  strict  law,  which  did  not  exist, 


*  Ariblot.,  I'ol.,  iii.,  9,  §§  7,  8. 


328 


POLITICAL  SCIENCE. 


but  according  to  equity  ;  usage  and  prescription  determined 
in  cases  of  property  ;  crimes  of  violence  were  revenged  by 
the  clan  or  smaller  community,  and  homicide  especially  was 
punished  by  the  next  of  kin.  In  some  communities  for  pri- 
vate warfare  were  substituted  pecuniary  satisfactions,  or  an 
estimate  of  damages  which  was  carried  out  in  the  codes  of 
laws  expressing  this  state  of  society  with  most  surprising 
minuteness.  The  decisions  in  the  gates,  and  hundreds  of  the 
Germanic  races,  were,  according  to  Tacitus,  made  by  princi- 
pes  and  a  body  of  freemen.  The  underlying  idea  in  this 
system  seems  to  have  been  that  the  meeting  of  the  commu- 
nity under  its  head  was  entrusted  with  judicial  proceedings. 
The  same  idea  is  perceived  in  the  democratic  Grecian  city- 
states,  where  the  archons  and  other  officers  capable  of  presid- 
ing in  courts  prepared  a  case,  and  a  large  committee  of  the 
people  found  the  verdict.  Sometimes  the  ccclcsia,  or  (as  at 
Rome)  the  people  in  the  comitia,  decided  in  certain  graver 
matters,  but  the  courts  there  came  to  consist  of  a  few  judges,  or 
a  judex  furnished  by  the  prjetor,  under  whose  superintend- 
ence the  preparatory  work  was  done.  The  system,  according 
to  which  the  whole  people  was  considered  as  invested  with 
the  judicial  power,  fell  away  in  the  Frank  kingdom  when  the 
people,  being  worried  by  the  courts  as  chief  judges  of  coun- 
ties, or  by  the  ccnteiiarii  as  their  deputies,  with  frequent 
summons  to  attend  their  placita,  lost  the  old  spirit  of  dis- 
charging their  public  duties.  At  one  time  a  set  of  men  called 
rachimburgi  were  appointed  to  give  advice  to  the  people 
assembled  in  the  placita,  in  regard  to  the  cases  brought  be- 
fore them.  In  their  places,  Charlemagne  appointed  another 
set  of  men,  called  scabinci  or  scabini,  for  whom  we  refer  our 
readers  to  §  237. 

In  England,  after  the  Norman  conques^,  and  at  first  in  the 
reign  of  Henry  II.,  a  system  of  jury  trials  begins  to  be  estab- 
lished. We  meet  with  eidcsliclf cr  or  conjuratorcs  as  early  as 
Cent.  vi.  on  the  continent,*  whose  business  it  was  to  testify 


*Conip.  Gforer,  Dcutsch.  Volckerr.,  i.,  chap.  10. 


DEPARTMENTS  OF  GOVERNMENT  IN  A  STATE.  329 


to  the  character  of  the  accused  person,  and  it  is  supposed  by 
some  that  juries  in  our  sense  of  the  word  began,  when  these 
persons,  neighbors  of  the  person  on  trial  and  present  in  the 
court,  were  found  convenient  to  judge  on  the  facts  of  the 
case.  Other  explanations  are  given  by  others  which  we  are 
obhged  to  pass  over.  When  the  jury-system  was  estabHshed 
a  new  element  was  introduced,  somewhat  similar  to  that  found 
in  the  early  city-states  in  Greece,  the  juries  being  a  kind  of 
committee  of  the  people  to  aid  the  king's  judge.  But  the 
position  of  the  jury  in  relation  to  the  judge  was  not  so  inde- 
pendent at  first  as  it  became  afterwards. 

The  judges  in  England  were  the  king's  officers,  although 
there  and  in  Scotland  the  baronial  jurisdiction  existed  as  it 
did  on  the  continent,  and  only  disappeared  by  degrees.  Of 
the  various  courts  I  can  say  nothing,  nor  of  the  circuits  of  the 
judges  in  the  counties.  The  king's  courts  supplanted  the 
courts  of  the  barons,  being  appealed  to  from  them.  But  the 
king's  judges  were  dependent  on  him,  and  being  removable 
at  pleasure,  were  often  not  to  be  trusted  when  he  was  inter- 
ested or  sought  to  influence  them.  At  length,  by  the  act  of 
settlement  (1701),  the  judges  were  by  law  to  hold  their  office 
quamdiii  se  bene gesserint ,  and  at  the  accession  of  George  III. 
it  was  provided  that  a  king's  death  should  not  put  an  end  to 
their  office.  Many  other  improvements  have  been  made  in 
more  modern  times,  among  which  that  which  a  few  years 
since  brought  in  cheap  justice,  without  lawyers  and  without 
juries  unless  the  parties  wished,  by  means  of  county  courts, 
for  the  settlement  of  small  civil  cases,  deserves  especial  men- 
tion. 

The  judiciary  system  in  a  country  comprises  all  the  judges  in 
the  various  courts  from  the  police  and  municipal  justices  up 
to  the  high  courts  of  appeal,  including  those  of  equity,  if  that 
is  committed  to  a  distinct  body  of  judges,  — together  with  the 
juries  where  they  are  in  use,  the  officers  emploj'ing  in  sum- 
moning, arresting,  and  executing  sentences,  a  portion  of  the 
police,  i.  c,  the  detective  force,  in  a  certain  sense,  also  the 
legal  profession,  and  any  bodies  vested  with  judicial  powers 


330 


POLITICAL  SCIENCE. 


aside  from  the  ordinary  courts.  In  regard  to  the  judiciary 
in  general,  especially  the  regular  courts,  we  remark, 

1.  That  they  are  in  no  proper  sense  the  representatives  of 
the  chief  magistrates  or  of  the  people.  When  the  people 
judged  in  the  city-states,  they  did  so  because  they  feared  to 
set  the  aristocracy  or  any  irresponsible  judges  over,  them. 
But  the  system  was  bad.  The  bodies  of  dikasts  at  Athens 
brought  into  the  courts  all  the  prejudices  and  political  feel- 
ings of  the  ecclesia.  We  find  orators  appealing  to  their  poli- 
tical feelings,  and  undertaking  public  suits  in  order  to  put 
down  their  rivals.*  The  true  idea  would  have  been  that 
the  community  was  sovereign,  but  was  bound  to  appoint 
judges  who  could  have  the  impartiality  and  knowledge  which 
they  (the  community)  did  not  possess.  So  the  kings  who 
acquired  this  right  were  bound  to  appoint  men  who  should, 
in  disregard  of  a  royal  wish  or  command,  judge  fairly  and 
righteously.  But  kings  generally  appointed  judges  to  carry 
out  their  will  which  was  just  defeating  the  end  for  which  the 
office  ought  to  exist.  Judges  are  in  no  sense  representatives 
of  the  people  or  the  king,  or  of  any  will  whatever,  except  so 
far  as  they  take  a  place  which  the  people  or  the  king  filled 
before.  In  a  higher  sense,  they  are  not  representatives  of  the 
community  nor  of  its  chief  magistrates,  but  of  justice  and  of 
God. 

2.  Judges  differ  from  other  officers  of  state  in  that  they 
have  a  part  to  perform  which  is  almost  e.xclusively  moral.  If 
the  fact  is  in  question,  they  are  to  search  out  what  it  is  with- 
out bias  and  with  an  earnest  desire  to  know  the  truth.  If 
the  law  is  in  question,  they  cannot  swerve  a  hair's  breadth 

*  For  instance,  in  Demosth.  c.  Aphob.,  ii.,  at  the  end,  the  boy- 
pleader  says  that,  if  he  gains  liis  case  he  will  be  willing  to  discharge 
his  liturt^ice  (or  public  burtlens),  as  being  grateful  to  the  jutlges  for 
restoring  to  him  his  estate  ;  but,  if  they  should  make  his  adversary, 
Aphobus,  master  of  the  estate,  he  would  do  no  such  thing.  "  For  (io 
not  think  that  he  will  be  willing  to  ])erf()rm  i)ublic  services  for  you 
on  property  which  he  denies  ever  having  received,  but  will  hide  it 
rather,  in  order  that  it  may  ai)pear  that  he  was  justly  absolved  from 
my  charges  against  him." 


DEPARTMENTS  OF  GOVERNMENT  IN  A  STATE.        33 1 


from  the  law.  If  equitj'  is  in  question,  they  must  make  no 
rules  of  equity  to  suit  the  immediate  case,  but  must  inquire 
what  is  the  highest  justice. 

3.  They  must  then  be  removed  as  far  as  possible  from  all 
biases  and  warping  influences,  whether  proceeding  from  a 
court  or  government,  a  people  or  public  opinion,  or  from  the 
base  approaches  of  suitors  or  the  improper  influences  of  ad- 
vocates. They  must  have  the  spirit  of  the  old  prophet,  who, 
when  a  king's  messenger  said  to  him  "  behold  now  the  words 
of  the  prophets  declare  good  unto  the  king  with  one  mouth  ; 
let  thy  word,  I  pray  thee,  be  like  the  word  of  one  of  them 
and  speak  that  which  is  good,"  replied,  "  as  the  Lord  liveth, 
what  the  Lord  saith  unto  me,  that  will  I  speak."  They  are 
in  fact  more  immediately  servants  of  God  than  any  other 
men  who  manage  the  affairs  of  a  country,  because  expediency, 
departure  from  law  or  from  constitution,  is  for  them  in  no 
circumstances  a  thing  to  be  conceived  of.  They  are  not 
called  to  promote  the  interests  of  the  country  directly,  but 
to  decide  in  particular  cases  that  come  before  them  what  is 
law,  or  what  is  fact. 

4.  Having  thus  the  general  principles  of  law  and  their  ap- 
plication to  particular  cases  in  their  hands,  they  are  the  great 
defenders  of  established  order  against  the  legislative  and  the 
executive  departments  of  society,  and  also  against  the  insur- 
rectionary forces  of  the  community,  so  far  as  individual  men 
or  small  bands  of  them  rise  in  rebellion  against  law.  Their 
relation  to  the  law-making  and  the  law-executing  powers  is 
peculiarly  delicate  and  important,  whether  there  be  a  written 
constitution  or  one  of  traditions  and  of  laws  held  to  be  espe- 
cially sacred.  For  if  a  legislature,  which  is  subject  to  lawless 
gusts  of  public  feeling,  shall  pass  an  unconstitutional  law, 
how  is  the  constitution  to  be  preserved  as  a  living  and  sacred 
instrument  ?  There  is  no  entire  stability  or  continuity  of 
jural  existence  in  a  nation,  where  there  is  no  power  outside 
of  the  legislature  to  decide  whether  it  has  overstepped  its 
bounds.  Shall  the  executive  be  invested  with  such  a  power? 
This  power,  for  the  moment  of  decision  whether  a  law  ought 


332 


POLITICAL  SCIENCE. 


to  pass,  is  given  in  many  or  most  constitutional  governments 
to  the  chief  executive.  But  he  with  his  constitutional  advis- 
ers may  be  under  the  same  misimpressions  which  governed 
the  legislature,  and  there  is  moreover  a  presumption,  when  a 
law  made  by  a  legislature  is  brought  before  the  chief  magis- 
trate that  it  is  in  accordance  with  the  constitution.  This,  then, 
is  not  enough,  not  to  speak  of  the  evils  which  might  arise 
from  frequent  vetoes,  that  is  from  frequent  conflicts  of  inde- 
pendent functions  of  the  government.  There  is  need  that 
some  other  power,  not  strictly  political,  removed  from  the 
struggles  of  the  present,  having  no  ends  of  its  own  to  answer 
in  the  future,  scarcely  capable  of  being  jealous  of  other  au- 
thorities, should  have  the  function  of  deciding  what  is  the 
meaning  and  application  of  laws,  and  whether  there  is  any 
positive  conflict  between  a  new  one  and  a  received  one,  or 
between  a  new  one  and  a  constitution.  Thus,  suppose  a  law 
passed  which  virtually  sets  aside  the  habeas  corpus  act  in 
certain  particular  cases.  The  law  may  well  be  dictated  by 
temporary  political  feelings.  Shall  the  act  be  understood  to 
be  modified,  or  even  suspended,  though  no  mention  has  been 
made  of  such  suspension,  and  no  intention  to  do  this  is  ap- 
parent ?  This,  in  the  United  States,  might  conflict  with  the 
constitution  which  includes  this  act ;  in  England,  where  there 
is  no  formal  constitution,  and  where  a  parliament  could  over- 
throw the  act,  as  it  could  abrogate  any  other  law,  the  ques- 
tion would  arise  whether  the*  parliament  intended  that  the 
new  or  the  old  law  was  to  be  binding.  In  either  country  no 
body  of  men  is  fitted  to  decide  such  questions  except  the 
judges.  A  private  person  is  obnoxious  to  the  new  law,  and 
pleads  the  old  one  in  his  defense.  If  the  old  one  was  of 
prime  authority,  a  bulwark  of  individual  protection  against 
an  executive  and  subservient  courts,  and  was  not  formally 
suspended  or  abrogated,  the  presumption  is  that  the  new  law, 
less  general  and  applic^ible  to  particular  cases,  was  not  in- 
tended to  be  an  exception,  but  was  ignorantlj'  and  carelessly 
passed.  Ilcncc  the  decision  of  the  court  against  the  new 
law,  while  it  would  not  imply  that  sovereign,  lords  and  com- 


DEPARTMENTS  OF  GOVERNMENT  IN  A  STATE. 


333 


mons  might  not  in  one  session  abolish  the  habeas  corpus, 
just  as  they  passed  it,  would  confirm  that  most  important 
instrument,  until  the  people  could  have  a  breathing  spell. 
Meanwhile  the  old  law  would  stand,  and  a  case  that  was  be- 
fore court  would  be  settled  on  the  principle  of  the  old  statute. 
It  is  the  same  under  a  written  constitution  such  as  ours,  only 
that  the  law  would  be  pronounced  invalid  because  it  con- 
flicted with  the  express  words  of  the  constitution. 

Suppose,  on  the  other  hand,  a  very  obnoxious  law  to  be 
passed  in  a  constitutional  country,  which  the  judges  are 
obliged  to  regard  as  strictly  in  accordance  with  the  ground- 
law.  They  are  here  sworn  defenders  of  law,  even  of  law 
which  opposes  the  sound  sense  of  a  community.  Only  the 
power  that  made  can  alter  ;  and  the  censures  of  the  commu- 
nity on  their  representatives  will  be  followed  by  a  change  of 
legislation.  Thus  a  judiciary,  while  it  is  the  protection  of 
right  under  law,  has  not  any  proper  law-making  power;  it 
is  the  instrument  for  keeping  ujt'the  order  of  things  ;  change 
must  come  from  another  quarter.  Again,  unless  in  constitu- 
tional States  there  is  a  power  able  to  watch  over  the  constitu- 
tion, and  prevent  invasions  of  it,  especially  by  the  executive, 
it  must  become  a  sham,  of  force  against  the  people  but  un- 
able to  put  a  check  on  the  arbitrary  acts  of  the  public  officers. 
The  highest  courts  can  exercise  this  guardianship  of  the  con- 
stitution better  than  any  other  board  of  control  that  can  be 
devised.  The  questions  that  concern  constitutional  law  come 
before  the  judges  of  the  highest  courts  in  the  same  unpre- 
tending way  in  which  every  other  question  comes,  on  appeal 
for  final  decision.  A  person  is  required  by  an  officer  of  the 
government  to  do  a  certain  act,  and  refuses  compliance  on 
the  ground  that  it  is  unconstitutional.  The  same  process  is 
used  which  would  be  used  if  the  officer  demanded  something 
simply  illegal.  If  the  decision  of  an  inferior  court  is  sus- 
tained, this  is  an  end  of  the  law.  The  legislature,  if  it  en- 
deavored by  new  measures  of  its  own  to  uphold  the  law, 
could  do  this  only  by  the  help  of  the  executive.  If  the  offi- 
cers of  the  executive  after  such  a  decision  endeavor  to  enforce 


334 


POLITICAL  SCIENCE. 


the  law,  the  enforcing  officer  would  be  exposed  to  the  prose- 
cution of  the  injured  party  before  the  courts.  Thus  a  power 
in  the  state  which  is  without  physical  might  watches  over  the 
instrument  in  which  the  principles  of  stability  are  incorpo- 
rated, and  watches  effectually,  until  government  and  people 
desire  to  have  a  change  in  the  constitution. 

5.  The  judiciary  has  no  law-making  power,  and  yet  in  some 
countries  by  their  decisions  in  new  cases,  they  can  apply  old 
principles  to  the  changing  relations  of  society  ;  and,  in  fact, 
can  often  render  new  law  unnecessary.  If  man  had  an  abso- 
lutely fixed  physical  system  there  would  be  little  progress  in 
the  science  of  medicine.  So,  if  society  met  with  no  changes, 
if  all  relations  were  as  fixed  as  they  might  be  in  the  patri- 
archal life  of  a  tribe  removed  from  all  other  tribes,  there 
would  be  no  need  of  new  legislation.  But  the  thousand 
changes  arising  from  intercourse  with  foreigners,  inventions, 
different  distribution  of  property,  new  ways  of  conducting 
business,  and  the  like,  call  up  questions  to  which  the  existing 
laws  do  not  apply.  What  is  now  to  be  done  ?  If  the  law- 
making power  undertakes  to  reach  the  new  conditions  of 
things  by  law,  this  must  be  a  groping  process,  the  law  must 
be  made  before  the  case  is  understood,  and  will,  it  is  proba- 
ble, work  badly.  It  must  be  tinkered  over  and  over  until  it 
meets  the  new  circumstances  and  difficulties — not  to  say  that 
in  this  way  the  first  evils  or  disputes  arising  out  of  the  new 
state  of  things  must  be  unprovided  for.  But  what  law  cannot 
do,  the  courts  can  do  from  the  very  first.  For  as  rights  are 
fixed  in  their  general  form,  there  will  generally  be  some  time- 
ripened  principle  applicable  to  the  new  emergency  of  justice. 
A  precedent  can  be  found,  approving  itself  the  reason  of 
judges  and  of  lawyers,  by  which  the  domain  of  existing  law 
is  extended  so  as  to  protect  these  new  growths  that  demahd 
protection.  In  this  way  a  stability  is  given  to  the  new  con- 
ditions of  human  life  and  work.  Then  if,  after  trial  of  the 
precedent  established  by  the  courts,  new  legislation,  addi- 
tional or  adverse,  is  needed,  it  can  come  in  so  much  the  more 
safely  and  wisely.    Roman  law  could  never  have  grown  into 


DEPARTMENTS  OF  GOVERNMENT  IN  A  STATE.  335 


the  system  which  it  at  length  became,  unless  the  praetors  had 
worked  over  the  materials  of  the  existing  law  by  their  edicts. 
International  private  law,  or  the  "  conflict  of  laws  "  is,  to  a 
great  degree,  the  creation  of  the  courts  of  Holland  and  some 
other  European  states,  with  the  view  of  removing  the  impedi- 
ments in  the  way  of  private  business  by  the  application  of 
principles  already  acknowledged.  And  although  this  branch 
of  law  is  imperfect  and  not  wholly  settled,  it  may  be  said 
that  the  peaceful  commerce  of  nations  could  not  without  it 
have  reached  the  great  proportions  of  modern  international 
trade.  Nor  can  any  one  read  the  history  of  judicial  preced- 
ents, as  evolved  in  English  courts,  without  being  struck  with 
the  great  value  of  this  function  of  courts  as  an  accompaniment, 
as  a  substitute,  even,  for  legislation. 

6.  Another  exercise  of  judicial  wisdom  consists  in  equitable 
jurisdiction,  in  putting  into  the  place  of  strict  literal  law  some- 
thing higher  and  better.  Here  the  spirit  of  law,  its  intention 
and  aim,  is  preserved,  while  in  a  particular  case  or  class  of 
cases  its  operation  gives  way  to  considerations,  not  of  expe- 
diency but  of  extra  legal  right.  Equitable  exceptions  are 
like  pardons  in  that  they  set  aside  the  positive  letter  ;  but 
yet  they  confirm  the  rule  on  which  it  is  founded.  Siiinuuim 
jus  est  sunima  injuria.  It  is  evident  that  such  a  border  land 
as  equity  implies  along  the  boundaries  of  law  ought  not  to 
be  left  within  the  control  of  an  executive  ;  it  must  belong  to 
a  body  accustomed  to  travel  over  the  whole  territory  of  juris- 
prudence, and  familiar  both  with  its  rigid  principles  and  its 
beneficent  spirit.  Whether  equity  and  law  ought  to  be  so 
far  separated  as  to  be  committed  in  practice  to  a  different  set 
of  judges  is  a  question  which  has  been  disputed,  and  on 
which  the  jurists  of  different  lands  do  not  agree.  The  best- 
opinion  seems  to  be  that  all  courts  ought  to  have  jurisdiction 
in  equity  cases,  since  there  will  otherwise  be  too  pronounced 
a  separation  between  the  two  kinds  of  judges.* 

*  In  the  United  States  the  tendencv  for  a  considerable  time  has 
been  not  to  separate  tlie  two  by  assigiiinj^  thcni  to  two  classes  of 
judges;  and  now  (1876)  the  same  thing  is  brought  about  in  the 
great  changes  in  administering  law  in  Kngland. 


336 


POLITICAL  SCIENCE. 


^  231. 

There  must  be  a  division  of  labor  in  the  judiciary  system, 
Gradarions  in  a  wcll  as  in  thc  executivc.  Somc  transgres- 
judiciarj- system.  gjons  of  law  are  trifling  ;  others  are  grave  ; 
some  involve  principles  of  law,  others  have  to  do  with  fact 
only  ;  some  are  so  important  and  complicated  as  to  need  the 
examination  of  more  than  one  set  of  judges,  in  order  that  the 
settlement  of  them  may  be  more  fully  accepted  by  those 
who  are  learned  in  the  law.  There  will  then  be  gradations 
of  judges;  the  lowest  rank  concerning  itself  only  with  petty 
cases,  while  the  upper  decides  in  the  last  instance  on  cases  of 
appeal.  And  yet  it  would  seem  expedient  that  the  judges 
composing  this  highest  tribunal  should  not  be  kept  wholly 
aloof  from  ordinary  cases  of  law  which  involve  facts,  for  they 
would  be  tempted  to  become  too  abstract  and  estranged  from 
the  needs  of  life,  mere  men  of  legal  science. 

What  the  divisions  in  a  judiciary  system  ought  to  be,  it  is 
not  our  province,  nor  does  it  lie  within  our  experience  to 
determine.  We  only  suggest  the  following  considerations. 
First ,  while  law  ought  to  be  cheap,  some  bounds  should  be 
set  to  litigiousness.  Hence,  the  fees  and  costs  ought  to  be 
large  enough  to  deter  one  who  is  inclined  to  assert  his  rights 
unduly,  and  if  a  person  appeals  to  a  higher  court  against  the 
advice  of  the  judge  and  fails  on  the  appeal,  that  ought  per- 
haps to  be  a  reason  for  an  increased  court  due.  Secondly, 
courts  of  conciliation  for  the  trial  of  petty  cases  are  of  great 
importance  in  protecting  the  rights  of  the  poor,  and,  indeed, 
of  all  classes  in  society.  These  cases  generally  need  only  a 
simple  statement  of  the  case  by  the  parties  without  the  help 
of  advocates  ;  the  facts  are  for  the  most  part  admitted,  and 
the  aim  of  the  court  is  either  to  render  exact  justice  in  clear 
cases,  or  to  arbitrate  in  cases  that  are  not  so  evident.  Multi- 
tudes of  cases  arc  thus  settled,  which  the  complainant  would 
never,  on  account  of  the  expense,  bring  before  thc  ordinary 
courts  ;  but  the  great  advantage  is  that  a  feeling  is  diffused 
through  the  humbler  classes  that  society  and  its  arrangements 


DEPARTMENTS  OF  GOVERNMENT  IX  A  STATE. 


337 


exist  for  their  protection,  and  not  for  that  of  those  only  wlio 
can  employ  an  advocate.  Such  courts  in  different  shapes  are 
now  spreading  abroad  through  Europe,  and  deserve  to  be 
dififused  over  all  parts  of  the  world.* 

The  principal  divisions  of  labor,  however,  in  judiciary  sys- 
tems are  first  that  between  the  magistrates  who 

Jur  • 

prepare  the  cases  and  the  bodies  which  give  the 
final  decision,  and  secondly  that  between  the  modern  judge 
and  the  jury.  Other  forms  of  dividing  up  the  work,  as  when 
one  body  of  men  take  down  the  evidence  in  writing  and  re- 
port upon  it,  and  another  with  that  evidence  and  the  law 
before  them  make  the  final  decision,  seem  liable  to  great 
objections.  The  first  mentioned  of  these  divisions  of  labor 
is  illustrated  by  Athenian  and  by  Roman  practice.  The 
Athenian  system,  as  far  as  the  point  before  us  is  concerned, 
required  that  the  parties  should  appear  with  their  evidence 
and  witnesses,  cither  before  a  public  arbitrator  or  before  a 
magistrate,  who  had  the  right  of  presiding  in  a  court,  and  to 
whom  the  case  according  to  law  was  committed.  This  officer 
heard  the  testimony,  saw  that  it  was  reduced  to  writing,  had 
it  scaled  up  in  a  jar,  appointed  the  day  for  trial  according  to 
a  regular  system,  and  when  it  came  on  simply  took  his  place 
as  president  of  the  court,  kept  order,  called  for  the  votes  of 
the  dikasts,  had  them  counted,  and  announced  the  result.  As 
for  the  rest,  the  system  was  extremely  imperfect.  There 
were  no  prosecuting  officers  ;  the  dikasts  were  a  body  often 
unwieldy,  on  account  of  numbers  ;  and,  in  fact,  a  detachment 
of  the  peoi)le  carrying  political  feeling  into  the  dikastery  ; 
suits  for  false  witness  were  private,  not  public,  so  as  to  be  at- 
tended with  no  civil  penalties  until  after  tJirce  convictions, 
except  that  the  state  and  the  injured  party  received  equal 
damages  ;  there  was,  for  the  most  part,  no  appeal  ;  and  the 
appeals  were  only  for  special  reasons  from  a  decision  of  a 
regular  or  hcliastic  court  ;  and  the  party  in  whose  favor  a  suit 
was  decided  was  thrown  upon  his  own  means  for  recovering 

*  Comp.  Dr.  T,icbcr's  civ.  lib.,  chai).  xix.,  end. 
VOL.   11. — 22 


333 


POLITICAL  SCIENCE. 


what  the  court  had  decreed  him,  with  no  help  from  the 
state. 

In  the  Anglican  race  and  to  a  considerable  extent  in  other 
states  enjoying  Christian  civilization,  wherever  facts  are  to  be 
decided  in  private  cases  of  importance,  unless  the  parties 
renounce  that  mode  of  proceeding,  and  in  public  cases  where 
the  penalty  goes  beyond  a  trifling  fine  or  a  short  imprison- 
ment, a  jury  decides  the  facts  under  the  superintendence  of 
the  judge.  We  have  already  spoken  of  the  jury  as  an  institu- 
tion which  took  its  present  form  not  with  any  set  purpose, 
but  by  growths  and  changes  that  took  hold  of  earlier  usages 
and  shaped  them  towards  liberty  by  an  instinct  of  freedom. 
The  first  aspect  of  the  jury,  then,  is  its  relations  to  the  rights 
of  the  people.  As  the  judges  were  appointed  by  sovereigns, 
and  were  then  officers  looking  out  for  their  fiscal  affairs  as 
well  as  for  the  public  peace  and  security,  their  temptation 
was  to  neglect  justice  for  the  interests  of  their  masters  ;  or, 
at  least,  to  be  more  watchful  for  the  prerogatives  of  the  crown 
than  for  the  franchises  of  the  nation.  The  principle  of  trial 
by  a  court  of  one's  peers  protected  the  feudal  landholders 
against  their  sovereigns,  and  our  common  juries  did  the 
same  for  the  nation  ;  people  served  in  this  capacity,  who 
were  equally  anxious  for  the  public  peace  and  for  private 
individual  rights.  This  position  of  the  jury  again  attaches 
the  people  to  the  present  order  of  things,  for  they  see  that 
their  rights  are  protected,  and  especially  that  persons  obnox- 
ious to  the  government  need  not  be  sacrificed  to  its  power. 
The  decision  of  the  jury  in  the  trial  of  the  seven  bishops  was 
like  the  trumpet  resounding  through  the  land  of  Israel  in  the 
year  of  jubilee.  Another  advantage  of  some  moment  from 
this  institution  is  that  it  draws  the  attention  of  the  people 
towards  the  courts  and  the  administration  of  justice,  by  mak- 
ing them  feel  that  they  have  a  share  in  it,  and  by  calling  a 
few  of  them  continually  to  a  position  where  they  learn  some- 
thing concerning  the  institutions  of  the  country.  Where 
there  is  no  jury,  where  justice  has  not  a  popular  side,  there 
is  danger  of  a  suspicion  that  law  in  its  processes  is  a  jargon  or 


DEPARTMENTS  OF  GOVERNMENT  IN  A  STATE.  339 


a  mystery  quite  beyond  the  comprehension  of  the  body  of  a 
nation,  and  so  the  notion  of  justice  will  be  exclusively  bor- 
rowed from  the  dicta  of  those  who  are  wholly  given  to  pre- 
cedent. There  was  a  time  when  it  was  possible  to  pack 
juries,  to  overawe  honest  and  unprejudiced  ones,  to  direct 
their  decisions  by  a  tyrannical  exercise  of  judicial  power,  but 
these  things  for  the  most  part  passed  away  with  the  passing 
away  of  the  subservience  of  judges  themselves. 

The  office  of  a  jury  is  to  pronounce  upon  the  fact,  including, 
it  may  be,  the  motives,  without  respect  to  the  law  or  the 
penalty.  There  are  persons  who  think  capital  punishment 
undesirable,  but  it  would  be  wholly  wrong  for  them  to  be  in- 
fluenced in  their  judgment  of  the  fact  by  that  opinion.  If  a 
whole  jury  should  have  such  a  faith,  the  most  they  could  do 
would  be  to  recommend  pardon  or  a  lowering  of  the  sentence 
on  that  account.  In  one  case  there  is  a  question  what  is  in- 
cluded in  the  fact.  In  cases  affecting  character,  such  as  libel 
and  slander,  are  the  jury  to  determine  only  whether  the 
slanderous  or  libellous  words  were  uttered  by  the  person  com- 
plained of,  or  are  they  to  judge  whether  the  statements  were 
true  or  false  ?  The  point  here  raised  is  of  especial  importance 
for  the  liberty  of  the  press  and  for  the  full  discussion  of  per- 
sonal character,  which,  if  unaccompanied  by  malice,  is  often 
important  for  the  interests  of  society.  The  answer  which 
would  be  given  in  this  country  in  cases  of  libel  would  be  that 
the  truth  of  the  charges  made  could  be  brought  before  the 
jury  in  mitigation  of  damages,  and  the  same  rule  must  hold 
in  cases  of  slander. 

As  the  jury  is  in  a  certain  sense  a  check  on  the  judge,  who 
would  be  invested  with  a  fearful  power  if  he  could  have  law 
and  fact  in  his  hands  and  could  obstruct  the  course  of  appeals, 
so  the  judge  has  a  control  over  the  jury  first  by  his  charge, 
and  then  by  a  new  trial.  Thus,  if  tlie  jury  system  had  no 
imperfections,  there  would  be  as  near  an  approach  to  honest, 
intelligent  justice  as  is  possible  in  consistence  with  the  fact 
that  ignorant  persons  are  sometimes  found  on  a  jury  and  in- 
competent judges  on  the  bench. 


340 


POLITICAL  SCIENCE. 


There  might  be  an  approach  to  justice,  we  mean,  if  certain 
defects  were  removed.  The  leading  one  of  these  is  the  ne- 
cessity of  unanimity ,  which  would  be  almost  impossible  for 
twelve  men  sitting  on  a  case  without  being  sworn,  and  which 
must  often  be  brought  about,  in  the  case  of  a  jury  where  it 
has  retired  to  decide  upon  its  verdict,  by  a  part  who  are  less 
firm,  yielding  to  the  rest  against  their  conviction  or  without 
conviction.  A  change  is  desirable  in  civil  cases  so  that  a 
majority  could  bring  in  a  valid  verdict ;  not  a  bare  majority, 
but  one  large  enough  to  indicate  a  decided  balance  of  opinion. 
Two-thirds  or  three-quarters  would  not  be  too  few.  In  crimi- 
nal cases  involving  the  loss  of  life  or  long  imprisonment,  per- 
haps we  must  stick  to  the  solid  vote  of  the  body,  and  yet 
one  obstinate  man  has  saved  multitudes  of  prisoners  from  just 
punishment.  And  this  is  due  not  necessarily  to  improper 
motives  but  sometimes  to  a  tenderness  of  conscience,  an 
awakened  sense  of  responsibility,  which  looks  on  convicting 
one  who  can  by  any  possibility  be  innocent,  as  something 
awful  ;  as  if  there  were  anything  for  the  juryman  to  say  but 
that  his  prevailing  opinion  inclines  to  the  condemnation  of 
the  prisoner. 

Another  evil  seen  in  modern  times  is  the  great  unwilling- 
ness to  serve  on  juries  of  those  who  are  the  best  qualified  to 
perform  the  service.  It  falls  therefore  to  an  inferior  set  of 
men  ;  many  involved  in  large  business  or  disliking  the  com- 
pany or  the  discomfort  and  excitement  will  pay  their  fine 
rather  than  sit.  The  office  of  juryman  must  therefore  sink, — it 
has  sunk,  in  public  estimation,  and  with  it  must  fall,  if  this  is 
to  continue,  the  confidence  reposed  in  their  decisions.  Some 
feel  that  a  board  of  judges  would  do  better,  of  which  we  are 
wholly  unable  to  form  an  opinion.  It  may  be  mentioned  as 
a  curious  experiment  tliat  in  one  of  the  United  States  the 
choice  has  been  given  to  certain  criminals,  at  least  to  those 
tried  for  murder,  to  submit  their  cases  to  two  judges  without  a 
jury. 

While  some  might  regard  a  jury  of  twelve,  if  unanimity 
were  required,  as  too  large,  others  might  wish  to  have  it  con- 


DEPARTMEx\TS  OF  GOVERNMENT  IN  A  STATE.        34 1 


siderably  increased,  and  allowed  to  decide  without  being 
unanimous,  say  'by  a  majority  of  two-thirds.  What  would 
be  the  effects  of  the  increase  ?  Perhaps  a  small  increase 
might  add  to  the  weight  of  the  verdict ;  sixteen,  (or  instance, 
out  of  twenty-four,  would  carry  opinion  with  them  more  than 
eight  out  of  twelve.  Perhaps  it  would  prevent  any  one  or 
two  men  from  controlling  a  jury  when  they  had  retired  for 
its  verdict.  Perhaps  it  might  on  the  other  hand  increase  the 
practical  difficulties  of  finding  a  good  jury,  and  somewhat 
change  the  style  of  addressing  them.  Certainly,  if  they  were 
augmented  to  four  or  five  times  the  present  number,  much  of 
the  calmness  which  now  is  usually  demanded  in  the  proceed- 
ings in  jury  trials  would  be  lost.  If,  on  the  other  hand,  it  is 
now  possible  for  a  party  in  a  suit  to  bribe  one  or  two  jury- 
men the  motive  in  that  case  would  be  diminished. 

§  232. 

The  question  how  shall  the  judges  be  appointed  is  a  very 
Appoiium^nt,  ten-  important  onc.    In  most  of  the  monarchies  of 

lire,  ami  salary  of  ^ 

jndgts.  Christendom,  they  are  appointed  by  the  crown  ; 

under  the  constitution  of  the  United  States  and  in  several  of 
the  states  they  arc  nominated  by  the  chief  executive  officers, 
and  chosen  or  rejected  by  the  senate  or  by  both  houses  of 
the  legislature ;  in  other  states  they  are  voted  for  by  the 
people,  like  other  officers,  whenever  a  seat  becomes  vacant 
Absolute  appointment  has  its  advantages  in  constitutional 
countries,  for  the  sovereign  will  generally,  and  in  England, 
of  course,  always  follow  the  opinion  which  prevails  among 
his  advisers.  There  will  be  less  reference  to  political  con- 
siderations than  there  would  be  in  our  country,  where  a  great 
and  wise  lawyer  of  the  faction  out  of  power  would  stand  a 
small  chance  of  election.  Of  all  modes  of  appointment  the 
worst  is  that  by  direct  vote  of  the  people.  This  appears 
from  several  considerations,  i.  The  people  know  little  of 
the  men  out  of  their  own  <listrict  who  are  fit  to  make  good 
judges,  and  the  talent  which  is  best  fitted  for  this  position  is 
not  often  of  the  kind  which  attracts  the  public  eye;  sound- 


342 


POLITICAL  SCIENCE. 


ness  of  judgment,  moderation  and  impartiality,  love  of  truth, 
are  not  brilliant  qualities.  2.  The  candidates  for  the  bench 
submitted  to  the  people  will  be  selected  generally  by  a  party 
convention  and  the  place  be  offered  to  a  party  man.  But  en- 
trance into  the  office  of  a  judge  because  one  has  been  a  faith- 
ful servant  of  a  party  is  a  poor  omen  for  fidelity  and  impar- 
tiality. There  is  no  one  who  needs  to  cast  off"  all  immediate 
connection  with  a  party  as  much  as  the  judge,  and  this  is 
very  difficult,  if  his  most  intimate  relations  have  been  those 
of  party,  and  his  feelings  are  strong  party  feelings.  3.  It 
tends  to  lower  the  office  of  the  judge  if  he  is  elected  as  a 
servant  of  the  people.  Popular  election  proceeds  on  the 
principle  that  the  people  is  the  source  of  all  power,  which  is 
true,  in  the  last  resort,  and  tliat  the  persons  elected  are  agents 
of  the  people.  But  it  is  less  true  of  judges  by  far  that  they 
are  agents  of  the  people  than  of  any  executive  officer.  There 
is  nothing  falling  within  the  sphere  of  judicial  action  concern- 
ing which  the  judge  can  properly  inquire  what  the  people 
think  or  prefer.  The  same  is  in  a  degree  true  of  the  execu- 
tive, but  not  to  an  equal  extent  of  the  legislative  department. 
The  existing  law — from  whatever  source  it  comes — and  the 
facts  of  the  case  the  people  have  nothing  to  do  with,  as  far 
as  these  bear  on  the  trial ;  the  law  can  be  altered  for  future 
cases,  the  verdict  can  be  set  aside  perhaps  by  executive  par- 
don, but  the  judge  knows  only  existing  law  with  its  princi- 
ples and  the  irreversible  facts.  Now  election  by  the  people 
tends  to  make  a  man  feel  that  he  is  the  servant  of  the  people 
who  live  at  the  present  time,  not  of  the  law  nor  of  the  consti- 
tution, which  is  the  voice  of  the  people  for  all  time.  How 
can  this  fail  to  injure  his  firmness  and  his  righteousness,  espe- 
cially in  cases  where  a  political  criminal  has  the  people  strongly 
for  him  or  against  him  ?  Even  moral  lessons  the  judge  may 
not  go  aside  from  his  strict  duty  to  teach,  how  much  less  can 
he  use  his  power  as  the  people  would  have  him,  against  the 
claims  of  justice  ?  But  he  will  be  apt  to  do  this,  if  he  depends 
on  the  people  for  his  power.  On  the  other  hand,  the  execu- 
tive, or  the  executive  and  legislature,  come  and  go  ;  no  per- 


DEPARTMENTS  OK  GOVERNMENT  IN  A  STATE.  343 


manent  relation  can  be  established  between  them  as  electors 
and  the  judge  as  elected. 

The  term  and  tenure  of  office  are  equally  if  not  more  im- 
Term  of  judge's  portant.  It  is  now  so  fixed  a  principle  that  the 
judge  shall  hold  office  qnmndiu  se  bene  gesscrit, 
and  not  durante  bene  placito — a  principle  which  has  been  de- 
monstrated as  far  as  experience  can  demonstrate,  by  English 
history — that  we  may  spare  all  words  on  the  subject.  He  is 
indeed  responsible  for  the  use  of  his  power  of  decision  and 
for  the  motives  of  his  judicial  acts;  and  every  misdeed  com- 
mitted by  him  ought  to  be  punishable  more  heavily  than 
those  of  any  other  public  officers.  He  should  be  subject  to 
impeachment,  degradation  from  office,  or  loss  of  citizenship  ; 
while  heavier  crimes,  such  as  bribery,  might  well  bring  on  him 
a  heavier  penalty,  such  as  perpetual  imprisonment.  For  he 
of  all  public  officers  knows  best  what  crime  is,  and  has  to  do 
continually  with  moral  principles. 

The  question  arises  here  whether  there  ought  to  be  a  super- 
annuation for  a  judge,  or  term  of  age  beyond  which  he  can- 
not serve.  And  here  two  considerations  meet  us,  the  first 
that  judgment,  the  quality  most  important  for  the  judge,  is  one 
of  the  last  powers  to  fail,  and  the  other  that  different  men 
begin  to  fail  at  different  periods  of  life.  There  has  been  no 
time  fixed  in  the  provisions  of  state  constitutions  for  superan- 
nuation as  there  is  none  in  the  constitutions  of  different  men. 
In  most  of  the  United  States  seventy,  in  a  few,  sixty  years 
have  closed  a  judicial  life  ;  in  the  general  constitution  there  is 
no  term  at  all.  It  is  a  curious  circumstance  that  one  of  the 
greatest  jurists  we  have  ever  had  in  the  United  States,  Chan- 
cellor Kent,  became  superannuated  at  sixty  under  the  then 
existing  constitution  of  New  York,  after  which  he  fulfilled  the 
duties  of  a  professor  of  law  and  wrote  his  four  volumes  of 
commentaries.  That  was  certainly  a  happy  constitutional 
folly  which  forced  him  into  a  sphere  where  he  was  to  become 
the  instructor  of  thousands  in  all  the  states  of  the  union. 

On  the  whole,  considering  that  the  tendency  of  old  ago  is 
to  cling  to  the  past,  and  to  be  slow  to  receive  improvements 


344 


POLITICAL  SCIENCE. 


in  law,  and  that  cases  of  obvious  decay  require  to  be  attended 
to  by  themselves,  it  would  be  well  to  have  some  kind  of 
arrangement  by  which  a  judge  who  is  really  incapacitated 
shall,  on  representations  from  the  bench  and  perhaps  from 
the  bar,  be  invited  or  forced  to  resign,  a  retiring  pension 
being  given  him.  Such  a  suggestion  needs  to  come  from 
others,  since  a  man  is  often  unconscious  of  his  own  decay. 
In  regard  to  the  salary  of  the  judge  it  is  hardly  necessary 
to  say  that  it  ought  to  be  liberal,  so  that  men  of 

Salary  of  judges.  ^ 

the  best  talent,  who  in  middle  life  seek  rest  from 
the  contentions  and  worrying  details  of  a  lawyer's  work,  and 
would  gladly  devote  themselves  more  to  the  science  and  less 
to  the  practice  of  their  profession,  may  be  induced  to  accept 
one  of  the  most  honorable  of  offices.  Otherwise,  if  the  salary 
were  mean,  the  office  would  be  filled  with  third-rate  men, 
their  decisions  would  command  no  respect,  and  there  would 
be  less  stability  in  the  system  of  justice.  The  salary  also 
ought  to  be  independent  of  the  work  done  by  the  judge,  not 
derived  from  fees  in  whole  nor  in  part,  since  this  would  de- 
grade the  judge  and  put  him  under  temptation.  With  still 
greater  reason  ought  it  to  be  so  far  fixed,  as  not  to  be  dimin- 
ished during  his  term  of  service.  This  is  made  a  provision 
of  some  constitutions,  and  with  reason ;  because,  if  such 
reduction  were  allowed,  it  would  be  applied,  as  a  political 
weapon,  to  drive  out  of  office  a  judge  obnoxious  on  political 
grounds  to  the  legislature,  perhaps  obnoxious  on  the  ground 
of  his  interpretations  of  the  constitution. 

The  term  of  office,  furthermore,  ought  to  be  limited  accord- 
ing to  previous  remarks  only  by  intellectual  incapacity  or 
moral  delinquency  ;  in  other  words,  it  should  be  for  life  and 
not  for  a  short  term  of  j^ears.  Formerly  this  tenure,  perhaps 
with  the  limit  of  superannuation  at  some  period  of  life  or 
another,  was  universal,  we  believe,  in  the  states  of  the  union  ; 
now  a  large  part  of  them  have  given  up  this  plan  for  a  short 
term  of  office,  varying  in  different  states,  but  not  generally 
exceeding  a  dccennium.  In  most  states  these  short-term 
judges  arc  chosen  by  the  people.    The  reasons  that  led  to 


DEPARTMENTS  OF  GOVERNMENT  IN  A  STATE. 


345 


this  change,  which  we  regard  as  greatly  for  the  worse,  seem 
to  have  been  mainly  two.  Firsts  now  and  then  an  incompe- 
tent man  would  be  appointed  on  political  or  personal  grounds, 
or  a  certain  section  of  a  state  clamored  for  its  share  of  offices, 
and  had  no  good  material  to  make  judges  out  of.  It  seemed 
a  grievous  thing,  after  such  a  man  was  tested,  to  endure 
him  for  a  lifetime.  Thus  a  selection  made  for  unworthy 
reasons  broke  down  a  good  system  :  the  spirit  of  party  was 
listened  to  where  it  ought  not  to  have  any  weight ;  it  created 
bad  judges,  and  bad  judges  called  for  a  remedy,  and  there 
was  no  other  remedy  so  long  as  the  intense  party  govern- 
ment prevailed,  but  that  of"  changing  the  place  to  feel  the 
pain. " 

But  the  practice  spread,  not  because  judges  were  bad — for 
in  general  this  was  not  the  case — but  for  deeper  reasons. 
There  seemed  to  be  something  undemocratic  in  suffering  a 
man  to  fill  one  of  the  most  important  of  offices  for  a  lifetime  ; 
it  was  like  halving  a  king  ;  and  especially  inconsistent  did  it 
seem  with  our  institutions,  when  such  an  appointment  was 
left  to  the  governor  and  the  legislature.  Why  this  exception 
to  the  temporary  tenure  of  all  other  offices  ?  Add  to  this 
that  by  popular  election  of  judges  there  would  be  more 
chance  for  inferior  lawyers  to  gain  high  honor  by  the  help  of 
party  connections.  The  salary,  it  is  true,  would  be  less  than 
that  which  they  were  now  earning,  but  they  could  be  tolera- 
bly sure,  after  serving  in  a  judicial  office,  to  go  back  into  the 
rank  of  lawyers  with  a  greater  prestige.  An  "ex-judge" 
could  command  better  business  than  he  had  in  his  previous 
career  at  the  bar,  both  on  account  of  his  title  and  of  his  expe- 
rience in  the  work  of  courts. 

The  experiment  in  some  states  has  been  attended  with 
woeful  results.  A  recent  attempt  to  go  back  to  the  life  ten- 
ure, seconded,  we  believe,  by  the  leaders  of  the  bar  in  the 
state  of  New  York — where  judges,  resembling  the  prajtor 
Vcrres  or  Scroggs,  had  been  created  b)'  a  polilicil  vote,  and 
turned  out  to  be  so  bad  that  they  were  dei)osed  — pri)\-cd 
unsuccessful,  for  the  people  would  not  change  the  constitu- 


346 


POLITICAL  SCIENCE. 


tion  in  this  respect.  And  there  is  no  present  probability  of 
any  steps  in  the  direction  of  a  longer  tenure  or  of  a  better 
mode  of  election. 

^233. 

The  lawyer,  as  an  advocate  present  in  the  courts  and  tak- 
ing the  place  of  his  client,  is  an  essential  part 

The  advocate.  ..  .       .        .  ... 

of  Civil  and  criminal  justice  in  civilized  coun- 
tries. In  criminal  trials,  where,  above  all,  a  man  may  de- 
mand to  have  his  rights  protected,  some  of  the  freest  coun- 
tries have  not  until  recent  times  granted  to  the  accused  this 
privilege.  In  indictments  for  treason  the  accused  were  al- 
lowed to  have  counsel  in  England  by  a  law  of  William  and 
Mary  (7  Wm.  III.),  but  in  trials  for  felony  not  until  1836. 
This  great  injustice  seems  to  have  taken  it  for  granted  that 
there  was  presumption  of  guilt  in  being  indicted,  but  why 
should  such  a  presumption  prevent  my  clearing  myself  in  the 
best  wav  I  can.  There  seems  to  be  more  reason  in  allowing 
counsel  to  the  suitors  in  criminal  than  in  civil  cases.  The 
reasons  for  allowing  counsel  are  chiefly  these.  The  first  is 
that  there  is  more  equality  between  lawyers  on  the  whole 
than  between  suitors  on  the  whole.  This  reason  has  especial 
force  in  criminal  trials,  where  the  government  prosecutes 
through  an  attorney.  The  counsel  of  the  accused  will  gener- 
ally be  more  nearly  the  peer  of  the  government  officer  than 
the  criminal  can  be.  Many  innocent  men,  when  arrested  on 
suspicion,  are  unable  to  state  their  case  or  defend  themselves 
with  any  kind  of  skill.  Another  is  that  the  accused  person 
needs  some  protector,  for  although  prosecuting  officer  and 
judge  ought  to  feci  that  they  are  the  representatives  of  justice 
only,  they  seem  to  be  apt  to  have  a  hard  feeling,  the  one,  as 
if  it  were  the  main  thing  to  prove  his  point,  whatever  be  the 
truth  ;  the  other,  from  tlje  habit  of  estimating  accused  per- 
sons by  their  look  and  manner,  or  from  distrust  of  men  and 
belief  in  the  badness  of  human  nature  which  experience  in 
courts  is  apt  to  inspire. 

The  advocate,  being  allowed  to  take  the  place  of  his  client, 


DEPARTMENTS  OF  GOVERNMENT  IX  A  STATE.  347 


is  to  do  whatever  his  client  ought  to  do,  so  far  as  he  can  form 
an  opinion.  The  object  is  not  simply  in  criminal  cases  to 
prove  or  disprove  guilt,  but  to  prove  or  disprove  the  propri- 
ety of  conviction  on  the  evidence  submitted  by  the  prosecut- 
ing officer.  Whether  the  criminal,  if  conscious  of  guilt, 
ought  not  to  confess  it  in  open  court  as  a  matter  of  duty,  is 
not  a  jural  but  a  moral  question.  The  jural  point  is  to  find 
out  the  truth  according  to  the  evidence.  In  all  cases  the  ad- 
vocate is  bound  to  abstain  from  offering  any  evidence  which 
he  knows  to  be  false.  But  he  may,  even  if  he  knows  from 
his  client  that  he  is  guilty,  seek  to  prove  that  according  to 
the  evidence  he  cannot  legally  be  shown  to  be  guilty,  just  as 
the  client  himself,  if  arguing  his  own  case,  might  do  accord- 
ing to  the  rules  of  trial. 

What  evidence  ought  to  be  admitted  in  courts,  and  whether 
for  special  reasons  certain  persons,  sustaining  a  close  relation 
to  an  accused  person,  such  as  a  wife,  a  legal  counsellor,  or 
a  spiritual  adviser,  ought  not  to  be  called  on  to  bear  witness 
in  his  case,  are  matters  that  do  not  concern  us  here..  There 
is  a  tendency  since  Bcntham's  time  to  introduce  a  wider  range 
of  proof  than  was  before  allowed,  to  receive  the  testimony  of 
the  parties  themselves  and  of  others  before  excluded.  We  may 
thus  be  approaching  a  time,  when,  if  a  man  refuses  to  testify 
in  his  own  case,  it  will  be  presumptive  proof  that  the  case  is 
a  bad  one  ;  as,  when  torture  of  slaves  was  allowed,  to  refuse 
to  subject  one's  own  slave  to  torture  when  challenged  by  an 
adversary,  or  to  admit  the  adversary's  slave,  was  a  point  that 
would  be  pressed  before  the  judges*  by  the  opposing  party. 

*  This  was  actually  pressed  at  Athens,  and  in  general  the  testimony 
of  slaves  tliere  was  inore  valued  than  that  of  free  men,  which  shows 
the  unlrustworthiness  of  a  free  drt-ek.  Comp.  Hudtwalckcr  von  d. 
Diaeteten,  p.  51,  and  the  passages  there  cited  in  the  notes,  ncmostii. 
c.  Onet.,  i.,  p.  874,  is  especially  in  point.  On  the  other  hand,  tlie  fact 
that  slaves  who  could  not  hold  out  against  pain  would  often  testify 
what  they  thought  would  free. them  from  torture  soonest,  was  urged 
against  witnesses  of  this  sort.    Arist.  Rhet.  ad  Alc.\.,  chap.  .\vi.,  2. 


CHAPTER  X. 


INSTITUTIONS,  LOCAL  GOVERNMENT,  SELF-GOVERNMENT. 

§  234. 

The  common  law  of  England  has  been  called  lex  non  scripta 
Law  and  instiui-  distinguished  from  the  lex  scripta,  or  statute 
law.  When  we  speak,  however,  of  unwritten 
law,  it  does  not  of  course  follow  from  this  language,  that 
every  law  included  in  the  list  of  laws  so  named,  if  always  un- 
written, did  not  originate  in  some  will  of  a  tribe  or  commu- 
nity, exi3rcssed  at  some  definite  time  and  then  imposing  an 
obHgation  on  the  people,  or  possibly  in  some  will  of  a  sover- 
eign imposing  obligation  on  his  subjects.  Such  statutes  or 
laws,  formally  passed,  may  have  been  trusted  to  the  memory 
of  judges  without  being  reduced  to  writing,  and  the}',  as 
judges  now  do,  may  have  applied  them  or  the  principle  con- 
tained in  them  to  analogous  cases.  Or  the  principle  of  the 
law  in  one  country  may  have  been  adopted  without  legislation 
in  another.  In  this  way  a  law  grew,  as  it  does  now,  and  the 
best  things  in  it  may  have  come  from  just  or  equitable  deci- 
sions after  the  law  was  once  enacted,  without  any  knowledge 
or  memory  on  the  part  of  the  people  of  this  extended  signi- 
fication. Law  grew,  just  as  words  grow,  while  a  nation  con- 
tinues to  live. 

But  if  a  lex  non  scripta  can  be  supposed  to  have  in  part 
such  a  i)ositive  origin,  wc  cannot  justly  say  that  all  law  so 
originated.  The  farther  back  we  run  into  the  antiquities  of 
nations,  we  find  laws  made  to  a  less  and  less  degree.  In 
small  primitive  societies  this  function  of  law-making  was  of 
little  use,  because  relations  were  quite  fi.\ed,  and  progress 
slow.    Nor  can  we  suppose  that  legislative  foresight,  when  it 


INSTITUTIONS,  LOCAL  AND  SELF  GOVERNMENTS.  349 


called  forth  laws,  anticipated  the  creeping  in  of  new  usages 
and  customs.  It  rather  recognized  and  sanctioned  customs 
which  already  existed.  There  must  have  been  customs  to  a 
great  extent  which  communities  admitted,  which  guided  the 
decisions  of  judges,  and  were  widened  in  their  application  ; 
until  at  length  codes,  or  collections  of  usages  that  all  ac- 
knowledged to  have  a  sort  of  binding  force,  expressed  in 
clearer  terms  what  a  large  tribe  or  community  admitted  to 
have  the  force  of  law,  or  modified  that  which  had  become 
questionable,  and  added  some  new  matter. 

If  we  can  conceive  of  communities,  chiefly  of  primeval 
ones,  as  thus  passing  from  customs  to  unwritten  law,  from 
unwritten  to  written,  we  may  form,  perhaps,  a  juster  con- 
ception of  what  are  called  institutions.  How  are  these  re- 
lated to  laws  ?  How  do  they  differ  from  one  another  in  the 
course  of  time  ?  How  do  nations  differ  from  one  another  in 
the  capacity  to  form  them  ?  What  are  the  different  kinds  of 
institutions  ? 

If  customs  grow  up  in  early  societies  until  they  have  the 
force  of  law,  this  is  a  kind  of  unconscious  process,  in  the 
same  way  as  the  steps  towards  the  invention  of  machines 
which  help  the  arm  and  leg  are  at  first  unconscious,  that  is, 
without  previous  plan.  The  customs  will  vary  in  different 
communities,  because  man  himself  varies,  until  races,  dia- 
lects, national  feelings  are  produced  by  such  tendencies  to 
variety,  and  in  their  turn  add  to  the  variety.  The  laws  or 
customs  that  thus  arise  express  the  relations  between  men  in 
a  community  to  one  another  and  towards  the  community  as 
a  whole.  But  law  may  also,  as  it  works  in  modern  states, 
establish  something  positive,  for  instance  may  found  a  bank,' 
charter  a  city,  set  up  a  police  system,  create  a  bench  of  judges. 
The  law  gives  rise  to  these  forms  of  human  activities  in  defi- 
nite spheres  and  we  call  them  institutions,  as  being  set  up  or 
established.  Thus  in  the  word  we  express  the  fact  that  while 
law  in  itself  has  no  power  to  act  itself  out  or  bj-  its  inward 
cnerg'y  to  control  life  in  the  state,  it  can  impart  an  indepen- 
dent, permanent  energy  to  something  else  in  the  state  ;  it  can 


350 


POLITICAL  SCIENCE. 


create,  but  not  execute  ;  give  birth,  and  life,  but  not  properly 
of  itself  live. 

An  institution,  then,  depends  on  the  will  or  consent  of  the 
community  for  its  existence,  but  yet  has  a  lasting  indepen- 
dent life  of  its  own  ;  it  is  capable  of  growth  and  expansion  ; 
if  national,  it  may  perhaps  acquire  such  a  separate  power  of 
its  own  that  law,  that  even  force,  cannot  easily  overthrow 
it. 

In  this  way  we  may  define  an  institution  as  looked  at  in  an 
Their  political  im-  ^S^  whcn  law,  in  the  sense  of  positive  enact- 
portance.  nicut,  controls  the  whole  political  life  of  a  nation. 

But  an  institution  of  the  early  times  bore  just  the  resemblance 
to  one  of  the  present  age,  which  custom  before  positive  law  bore 
to  positive  law.  It  grew  up  as  personal  habits  grow  up,  with- 
out any  distinct  intention  on  the  part  of  the  individual,  or  as 
usages  grow  up  in  a  community  without  the  aim  of  making 
innovations.  The  habit,  the  usage,  acquired  a  sway  over  the 
individual  or  in  the  society,  before  it  was  noticed  and  recog- 
nized. And  it  answered  to  a  political  or  social  want  to  such 
a  degree  that  it  entered  into  the  thoughts  and  habits  of  a 
people,  it  became  easier  for  them  to  discharge  political  duties 
in  this  way  than  in  any  other,  it  thus  was  perpetuated  without 
any  conscious  attempt  to  perpetuate  it  ;  nay,  if  perchance 
attacked,  it  would  rally  multitudes  in  its  defence,  as  a  national 
tune  or  dish  which  a  tyrant  strove  to  prohibit  would  seem 
very  much  more  precious  than  before,  more  precious  than 
many  things  of  far  greater  importance. 

The  growth  of  such  institutions  is  one  of  their  most  remark- 
able qualities.    In  a  later  age  there  is  very  little 

Their  growth.         <-     i  i  •     •  •    •  ... 

of  this  characteristic  pertaining  to  institutions 
which  are  founded  entirely  by  positive  law,  without  being 
copies  of  antique  ones.  They  stay  where  they  are  put,  they 
do  not  spread  their  roots  around  by  an  inward  life  of  their, 
own,  but  arc  as  closely  confined  within  their  own  limits  as  are 
laws  themselves  apart  from  the  expansive  power  of  judicial 
precedents.  The  institutions  of  early  times  have  no  such  fet- 
ters on  them,  but  form  themselves  into  something  larger,  and 


INSTITUTIONS,  LOCAL  AND  SELF  GOVERNMENTS.     35 1 


until  they  reach  a  certain  maturity  take  a  continually  deeper 
hold  on  the  national  life  and  feelings.  They  have,  then,  these 
two  qualities,  the  first,  that  o{ groivth  by  the  force  of  national 
habit,  the  second,  'Ca'dX.oi subsequent  expmision,  accommodation, 
and  pl'iying  in  with  other  national  institutions  of  similar  ori- 
gin. During  all  this  time  law  accepts  of  them,  but,  as  it  did 
not  originate,  so  it  does  not  modify  them.  At  length  comes 
a  time,  when,  either  from  a  change  of  national  feeling,  or  from 
the  love  of  system  seen  in  codification,  or  from  change  of  po- 
litical institutions,  they  are  altered  and  accommodated  to  the 
rest  of  the  political  fabric.  It  may  be,  also,  that,  at  this  ad- 
vanced period  of  a  nation's  life,  many  new  institutions  some- 
what similar  are  created  by  law,  which  may  have  the  same 
self-subsistent,  permanent  life  as  the  old  ones.  This  depends 
on  the  fact  whether  a  given  nation  is  true  to  its  earlier  habits 
or  has  lost  them.  In  general  it  seems  to  take  a  long  time  be- 
fore the  habits  of  institutional  nations,  as  Dr.  Liebcr  calls 
them,  can  be  forgotten  or  become  inoperative.  No  new  in- 
stitutions are  then  found  growing  up  in  such  countries, 
but  the  old  ones,  remodelled  or  reproduced  with  some  new 
principles,  may  still  continue. 

The  nations  and  races  which  have  been  most  remarkable 
for  their  institutional  character  are,  Rome  in  its  earlier  days, 
before  law  stiffened  and  froze  national  habits,  England,  with 
some  other  portions  of  the  Germanic  race,  India  in  early 
times,  while  the  Celtic  and  Sclavonic  races  in  the  political 
sphere  have  had  less  of  this  character.  Among  the  Greeks, 
Athens  in  its  later  history  shows  little  of  it,  and  the  same  is 
true  of  the  Ionic  race  in  general  ;  but  the  Dorians,  especially 
Sparta,  had  the  opposite  character.  Among  the  eras  when 
the  institutional  spirit  had  been  most  active  within  the  historic 
period,  the  middle  ages  all  over  western  Europe  deserve 
especial  mention.  It  was  then,  in  a  new  form  of  society  with 
considerable  vital  force,  that  small  territories  were  left  to 
themselves,  without  much  intercourse  with  each  other,  to  lay 
the  foundations  of  a  new  social  and  religious  society  on  the 


352 


POLITICAL  SCIENCE. 


ruins  of  a  decayed  civilization.*  Among  forms  of  government 
those  swayed  by  will,  as  despotical  monarchy,  extreme  oli- 
garchy, extreme  democracy,  are  not  favorable  to  institutions. 
Thus  Louis  XIV.  disliked  parliaments  and  the  meetings  of 
the  three  estates,  as  being  essentially  checks  on  his  power. 
In  the  extreme  democracies  and  oligarchies,  in  fact,  there  is 
no  steadiness,  because  there  are  no  political  habits  ;  a  new 
device  is  tried  by  the  reigning  party  to  secure  its  own  tri- 
umph. In  larger  states  of  the  same  kind,  the  sway  of  the 
majority  is  the  first  principle,  and  any  barriers  that  resist  un- 
constitutional aggressions,  even  constitutions,  are  themselves 
thrown  down  if  possible. 

Usages  and  institutions  arise  and  grow  within  the  religious 
Religious  usages  Sphere  as  readily  as  within  the  political,  and 
and  institutions.  perhapsin  the  right  circumstances  grow  there 
more  freely.  We  refer  here  not  to  positive  enactments  in  re- 
ligion, like  circumcision,  baptism,  and  the  Lord's  supper,  but 
to  such  as  develop  or  support  .a  religion  in  its  practical  work- 
ings in  a  particular  direction.  An  instance  of  usages  extend- 
ing far  beyond  their  original  limits  may  be  found  in  the 
thanksgiving  which  has  spread  over  the  United  States  from 
New  England  without  any  law  whatever.  Instances  of  reli- 
gious institutions  may  be  found  in  the  order  of  prophets, 
which,  although  a  part  of  the  Jewish  system  at  a  very  early 
date,  outgrew  its  first  form,  associated  itself  with  schools, 
with  literature  and  history  ;  so  as  to  become  the  most  effi- 
cient supi)ort  of  religious  life  in  the  nation  against  political 
and  religious  corruptions.  The  oracle  of  Apollo  at  Delphi, 
with  the  temple  worship  which  supplanted  earlier  shrines, 
became  allied  with  politics  and  with  religions  festivities,  and 
was  the  capital  of  Greece  more  than  any  other  spot.  The 
papacy  in  its  growth  as  a  religious  institution  is  still  more 
marvellous  ;  borrowing  the  prestige  of  Rome  and  resting  on 

*  Beaumanoir,  in  the  prologue  of  his  Customs  of  lieauvoisis,  says 
that  "  on  ne  pourroit  trouver  es  royaunie  de  France  deux  cliastel- 
eries,  qui  uzasscnt  d'une  niesnie  coustume."  1  owe  tliis  citation  lo 
a  Frcncii  author. 


INSTITUTIONS,  LOCAL  AND  SELF  GOVERNMENTS.  353 


a  few  sacred  traditions,  by  its  aim  at  church-unity  it  was  able 
to  grow  into  a  power  all-embracing  and  superior  to  all  poli- 
tical institutions  whatsoever. 

Religious  institutions  thus  seem  to  spread  more  easily  than 
political  ones,  the  reason  for  the  difference  being  that  the 
former  take  hold  of  the  religious  nature  by  presenting  objects 
of  worship  conceived  to  be  real,  and  to  be  able  to  do  good 
or  harm  as  they  are  neglected  or  honored.  They  are  also 
connected  with  social  life  by  festivals,  public  sacrifices,  pro- 
cessions, and  the  like.  Hence,  heathen  religions,  within 
certain  limits,  spread  from  nation  to  nation,  so  that  it  may  be 
hard  to  say  what  gods  are  indigenous  and  what  imported. 
The  Christian  religion  has  difficulties  in  establishing  itself 
arising  from  its  severe  morality  and  spirituality,  although  it 
has  in  itself  an  eminent  power  of  organization. 

We  have  mentioned  two  types  of  institutions,  one  that 
appears  in  the  older  primeval  period  of  national  life,  and  an- 
other that  appears  in  the  period  when  the  political  habits  are 
already  established.  The  first  are  political  habits  which  have 
no  positive  origin  in  expressed  public  will,  which  grow  and 
unite  themselves  with  other  political  habits,  until  they  reach 
their  full  stature  ;  which  may  then  be  modified  by  law,  so  as 
to  become  better  expressions  of  the  new  political  state  of  a 
people.  The  others  are  copied  after  them,  or  borrow  sug- 
gestions from  them,  or  carry  out  further  certain  principles 
which  they  contain,  or  are  brought  in  from  a  foreign  birtli- 
place.  The  first  Dr.  Lieber  calls  crcscivc,  a  bad  word  which 
may  be  endured,  as  it  can  denote  that  which  not  only  first 
comes  up  in  the  soil  of  national  life,  but  grows  up  afterward  ; 
the  other  he  calls  enacted,  and  when  the  first  are  modified  by 
law,  he  gives  them  the  name  bf  mixed.  Dr.  Arnold  confines 
the  term  institutions  to  those  only  that  grow.  "  By  institu- 
tions," says  he,  "  I  wish  to  understand  such  officers,  orders  of 
men,  pui^lic  bodies,  settlements  of  property,  .customs  or 
regulations  concerning  matters  of  general  usage,  as  do  not 
owe  their  existence  to  any  general  law  or  l;iws,  but,  having 
originated  in  various  ways  at  a  i)eriod  of  remote  antiquity, 
VOI-.  II. — 23 


354 


POLITICAL  SCIENCE. 


are  already  parts  of  the  national  system  at  the  very  beginning 
of  our  historial  view  of  it,  and  are  recognized  by  all  actual 
laws,  as  being  themselves  a  kind  of  primary  condition  on 
which  all  recorded  legislation  proceeds.  And  I  would  con- 
fine the  term  laws  to  the  enactments  of  a  known  legislative 
power  at  a  certain  known  legislative  period."  * 

There  is  much  that  is  excellent  in  this  short  explanation  of 
what  institutions  are,  but  it  labors  under  several  defects. 
One  is  that  if  we  can  get  at  the  original  of  a  so-called  institu- 
tion and  explain  how  it  grew  up  or  how  it  expanded,  it  will 
cease  to  have  a  right  to  the  name  any  longer.  Another  is 
that  if  remote  usages,  deserving  the  name  of  institutions, 
should  afterwards  be  codified,  or  someweat  altered,  or  made 
parts  of  an  enacted  constitution,  they  would  cease  to  be  insti- 
tutions thenceforth.  Still  another,  is  that  which  Dr.  Lieber 
makes  prominent,  that  Dr.  Arnold  speaks  of  officers,  orders 
of  men  and  public  bodies,  as  if  the  institution  was  nothing  in 
itself,  apart  from  those  through  whom  it  bears  upon  the  com- 
munity. It  is  true  that,  although  laws  can  be  conceived  of 
without  men  to  execute  them,  the  men  are  an  essential  part 
of  the  institution,  they  are  that  through  which  it  acts  ;  and  so 
we  may  say  of  the  jury  system,  that  the  office  of  determining 
the  evidence  in  certain  cases  at  law  is  inconceivable  without 
men  who  perform  it ;  but  the  acts  which  they  perform  are  the 
essential  part  of  a  jury,  it  is  the  spiritual,  immortal  side  of  the 
system,  while  the  men  are  the  body. 

Dr.  Lieber's  view,  as  it  is  a  studied  one  and  not  thrown 
out  in  a  paragraph  like  Dr.  Arnold's,  is  more  satisfactory, 
yet  where  he  says  that  "  it  is  a  system  or  organic  body  of 
laws  or  usages  forming  a  whole  of  extensive  operation  or  pro- 
ducing widely  spreading  effects,"  we  may  criticise  the  last 
part  of  his  definition.  For  there  may  be  a  system  of  laws, 
like  a  bankrupt  law  or  a  tariff",  which  is  certainly  not  an  insti- 

*  Lecture  first  on  Modern  History,  ]).  35,  Amer.  ed.,  1845.  f)'- 
Lieber's  discussions  on  institutions  are  in  his  Civil  Liberty,  lectures 
XXV.,  xxvi.,  pp.  297-373,  of  ed.  3,  edited  by  the  writer  of  this  work. 


INSTITUTIONS,  LOCAL  AND  SELF  GOVERNMENTS.  355 


tution,  and  there  may  be  institutions  which  have  no  extensive 
operation.  As  for  the  rest,  we  warmly  commend  his  whole 
exposition  of  this  subject  to  our  readers. 

The  effects  of  institutions  in  concentrating  national  feeling 
at  certain  points,  and  in  thus  furnishing  something  tangible 
and  positive,  where  a  nation  can  find  shelter  for  misgovern- 
ment,  deserve  the  attention  of  the  political  student.  Yet  as 
the  quality  of  permanence  may  belong  to  institutions  which 
are  opposed  to  freedom,  so  that  freedom  can  be  secured  only 
by  change,  they  may  be  evil  in  their  influence  as  well  as  good. 
The  village  communities  of  India  and  of  other  countries  on 
which  Sir  Henry  S.  Maine  and  others  have  shed  so  much  light, 
are  strictly  institutions,  although  more  social  than  political  ; 
they  grew  up  everywhere,  out  of  a  feeling  of  relationship 
which  regarded  the  community  as  holding  lands  in  joint 
ownership,  and  more  or  less  prevented  strangers  from  having 
property  or  even  a  settlement  within  the  bounds,  without  the 
community's  consent.  Thus  a  great  part  of  the  intercourse 
of  society  is  cut  off,  and  where,  as  in  India,  caste  is  added  to 
this,  progress  maybe  effectually  prevented.  The  commu- 
nity may  regulate  its  own  affairs,  but  the  feeling  of  freedom 
never  steps  beyond  the  limits  of  the  place. 

A  few  examples  of  institutions  that  have  grown  up  and 
acquired  strength  as  they  went  on,  may  be  of  use  to  show 
how  important  a  part  they  have  played  in  modifying  and 
even  giving  new  direction  to  political  systems. 

§235. 

I.  The  Ephorate  at  Sparta  or  board  of  overseers.  These 
Illustrations,  werc  five  in  number,  annually  chosen  from  all 
EphorsofSp..r.a.  ^j^^  Spartaus,  rich  and  poor;  and  may  have 
been  vicars  of  the  kings  in  early  times,  like  the  prcefectus 
nrbts  at  Rome.  Their  functions  were  that  of  judging  in  cases 
of  contract  and  that  of  a  police.  This  somewhat  vague  police 
power  must  have  aided  the  -development  of  these  magistrate.^, 
as  they  followed  without  doubt  both  usages  and  old  customs, 
and  their  own  sense  of  propriety.   They  were  also  aided,  appa- 


35(5 


POLITICAL  SCIENCE. 


rently,  by  a  change  of  feeling  in  the  community  towards  the 
kings,  by  a  certain  suspicion  of  them,  and  this  feehng  may  have 
been  coincident  with  inequahties  of  fortune  which  gave  rise 
to  a  democratic  element.  Hence  the  ephors  themselves  were 
called  by  some  Greek  writers  the  representatives  of  the  demo- 
cratic element,  and  this  was  so  far  a  just  opinion,  as  they 
could  be  and  often  were  selected  from  the  inferior  rank  of 
Spartans,  and  became  the  checks  on  the  growth  of  the  aristo- 
cratic element  in  the  constitution.  Their  power  was  arbi- 
trary as  well  as  great.  "They  are  competent,"  says  Xeno- 
phon  (reip.  Lac,  viii.,  4),  "to  fine  whom  they  will,  and  have 
authority  to  exact  the  fine  on  the  spot,  and  to  depose  mag- 
istrates during  their  offices,  to  imprison  them  and  even  to 
bring  them  to  capital  trial."  Their  power'  in  checking  the 
kings  was  certainly  an  innovation  (K.  F.  Hermann,  §  45). 
They  called  and  managed  the  assemblies  of  the  citizens,  re- 
ceived and  sent  ambassadors,  arranged  campaigns,  and  a 
deputation  of  two  of  their  number  accompanied  the  kings  to 
the  wars.  We  abstain  from  further  particulars.  Enough  has 
been  said  to  show  the  original  idea  and  the  additions  due  to 
later  times.  All  these  additions  fastened  themselves  on  the 
primeval  police  and  judicial  power. 

2.  The  Roman  tribunate.  In  the  case  of  this  institution, 
— intended  at  first  as  the  organ  of  the  plebs  to 
afford  aid  to  such  as  invoked  aid  against  the 
magistrates  of  the  citizens  with  full  rights,  and  although 
without  any  ivipcriuni,  yet  clothed  with  a  sacred  character, — 
we  have  its  origin,  growth,  and  ultimate  form,  with  its  effi- 
ciency in  the  state  so  fully  set  forth  in  history  and  by  writers 
on  the  Roman  constitution,  such  as  Langc  and  Momniscn, 
that  it  is  unnecessary  to  do  more  than  mention  it  as  a  very 
striking  example  of  an  institution  growing  in  competence  and 
importance  far  beyond  its  first  limits.* 

The  Roman  constitution  affords  several  other  instances  of 
the  development  of  a  power  or  office  from  another,  until  it 

*  See  Lange.  Rom.  .Mtciih.,  i.,  §  85,  and  ii.  and  iii.  ])assini  ;  Moniin- 
sen,  Roin.  Staatsrecht,  ii.,  1.  p.  247  and  onw. ;  as  also  his  liislory. 


INSTITUTIONS,  LOCAL  AND  SELF  GOVERNMENTS.  357 


acquired  great  dimensions.  Such,  for  instance,  was  the  cen- 
sorial power,  an  offshoot  from  that  of  consul,  and  the  imperial 
power  or  principate,  which  shows  the  same  growth  by  aggre- 
gation of  several  magistracies  into  one.  (Comp.  \^  166.) 
3.  The  inajor-doinus  or  mayor  of  the  palace  was  an  office 
which,  somewhat  like  the  viziers  of  the  sultans 

Major  domus. 

of  Bagdat  and  about  the  same  time,  yet  from 
smaller  beginnings,  took  its  position  ultimately  as  the  first 
power  in  the  state.  The  name  belonged  to  the  principal  do- 
incsticiis  or  house-servant,  who  appears  in  the  palaces  of  the 
kings  of  various  German  tribes,  as  of  the  Franks,  Burgun- 
dians,  Lombards,  West-Goths,  and  Anglo-Saxons.  The  name 
domcsticHS  was  borrowed  from  the  Romans  of  the  lower  em- 
pire, where  certain  officials  attached  to  the  emperor's  person 
were  so  called.  Under  the  Frank  kings  of  the  first  line  some 
of  these  domcstici  are  found  entrusted  with  the  care  of  the 
king's  palaces  and  provisions,  they  manage  his  estates,  they 
are  present  at  his  decisions  in  courts,  they  even  act  as  provin- 
cial magistrates,  sustaining  the  duties  which  were  ordinarily 
committed  to  counts.  The  viajor-domns  was,  at  first,  simply 
the  head-servant  of  the  house,  and  answers  to  the  seneschal 
(from  sin,  a  German  root  denoting  duration,  age,  force  or 
prominence,  and  scalk,  Ger.  schalk,  servant,  old  or  head-servant, 
as  marcscalk,  our  marshal,  denoted  horse-servant).  Major  in 
mnjor-domus  has  left  its  descendants  in  the  Germ,  mcicr, 
maicr,  a  steward  or  bailiff,  then  a  tenant  of  a  farm,  in  the  Fr. 
and  Engl,  maire,  mayor,  who  must  originally  have  been  the 
seignior's  officer  to  look  after  his  revenues  in  the  city.  The 
major-domus  was  also  called  senior-domus,  major-donins  pala- 
tii,  and  by  other  names. 

The  major-domus,  par  eminence  or,  as  we  will  call  him, 
the  mayor  of  the  king's  palace,  came,  as  the  head  domestic, 
to  have  important  political  as  well  as  other  functions  com- 
mitted to  him.  The  education  of  young  boys  trained  up  in 
the  king's  palace  for  the  king's  service,  the  maintenance  of 
discipline  and  ])eace  among  the  magnates  and  in  the  land,  the 
education  of  kings  who  had  succeeded  to  the  crown  in  their 


358 


POLITICAL  SCIENCE. 


minority,  probably,  also,  the  care  of  the  royal  domains  and 
collection  of  the  taxes  and  dues  for  his  fisc,  fell  into  this  offi- 
cer's hands.  Although  a  private  and  household  officer,  it  was 
the  easier  for  him  to  go  beyond  the  boundary  of  a  private 
agent,  because,  in  the  Frank  kingdom,  under  the  first  line, 
there  was  no  exact  limit  between  private  and  political  author- 
ity. As  being  near  to  the  king's  person,  he  managed  a  great 
variety  of  business  ;  and  hence,  when  the  major-domus  in 
Burgundy  died,  the  magnates  refused  to  choose  another,  be- 
cause they  wished  to  treat  with  the  king  directly.  (Waitz, 
D.  Verfassungsgesch. ,  ii.,  426.)  This  fact  seems  to  indicate 
that  the  inajor-doniiis  had  become  a  king's  vicar,  and  a  repre- 
sentative of  the  aristocracy. 

Besides  inferior  inajorcs  donms,  there  were  three  especially 
who  came  to  be  prime  ministers,  and  also  generals  in  chief, 
or  commanders  in  war  of  the  vassals  of  the  Merovingian 
kings.  These  were  the  mayors  of  the  Austrasian  or  East 
Franks,  of  Neustria,  or  the  West  Franks,  and  of  Burgundy. 
Among  the  East  Franks  the  office  became  hereditary  in  the 
family  of  Pippin  of  Landen  or  Landes,  who  lived  in  the  sev- 
enth century  (a.D.  628)  and  managed  the  affairs  of  King  Da- 
gobert  during  his  minority.  The  son  of  this  Pippin,  Grim- 
oald,  was  powerful  enough  to  attempt  to  raise  his  own  son  to 
the  throne,  but  he  found  small  support  and  was  put  down. 
Erelong,  however,  in  the  person  of  Pippin  of  Heristal  the 
office  and  power  of  the  mayors  in  Austrasia  were  restored  to 
the  family.  Pippin,  as  duke  of  Austrasia,  turns  his  arms 
against  the  magnates  of  Neustria,  and  is  able,  after  the  victory 
of  Testri,  to  set  up  one  of  his  own  sons  in  the  office  of  mayor 
in  that  division  of  the  Frank  kingdom  (A.D.  687).  Soon 
after  714,  the  illustrious  son  of  Pippin,  Charles  Martcl,  suc- 
ceeded to  the  mayoralty,  and  after  surmounting  the  great 
difficulties  of  his  first  years,  growing  out  of  contests  with  his 
family,  with  the  grandees  of  the  Franks,  with  the  German 
dukes,  with  the  Saxons  and  Frieslanders,  became  the  savior 
of  Europe  by  defeating  the  Arabs  in  732,  at  the  battle  of 
Poitiers.    He  was  king  of  the  Franks  in  fact,  although  not 


INSTITUTIONS,  LOCAL  AND  SELF  GOVERNMENTS.  359 


in  name;  and  at  his  death  in  741  divided  the  three  great 
mayoralties  among  his  sons.  The  weak  Merovingian  kings 
had  now  become  puppets  in  the  hands  of  the  mayors.  His 
son,  Pippin  the  Short,  after  putting  down  his  own  brothers 
and  being  now,  tn  fact,  king  of  the  Franks,  suggested  to  the 
pope  whether  it  would  not  be  well  to  make  him  such  by  a 
solemn,  religious  consecration.  The  pope  entered  into  his 
views,  the  magnates  consented,  and  so  he  became  in  name 
the  first  king  of  the  dynasty  of  the  Carolings.  He  was  suc- 
ceeded by  his  son  Charles  (Charlemagne),  who,  in  800,  was 
crowned  by  Leo  HI.  emperor  of  the  west,  and  got  into  his 
hands  nearly  all  of  central  Europe.* 

The  history  of  this  office  affords  a  very  striking  illustration 
of  an  institution  growing  up  without  law,  by  the  force  of  cir- 
cumstances that  favored  its  development.  One  of  these 
favoring  circumstances  was  the  political  and  personal  weak- 
ness of  the  Merovingian  kings.  Another  is  that  the  East- 
Franks  were  the  most  warlike  and  uncorrupted  by  vices  of 
all  the  portions  composing  the  Frank  kingdom.  Still  another 
is  that  the  most  powerful  family  among  the  East-Franks  re- 
tained to  a  good  degree  the  support  of  their  brethren  in  the 
aristocracy.  They  also  ingratiated  themselves,  nothwithstand- 
ing  arbitrary  acts  relating  to  ecclesiastical  property,  with  the 
leaders  in  the  church.  It  is  noticeable  also  that  great  ability 
through  a  number  of  generations  distinguished  a  family  which 
after  Charlemagne  ran  down  and  ran  out. 

When  the  descendants  of  Pippin  of  Heristal  became  kings, 
they  abolished  the  high  office  of  mayor  of  the  palace,  lest 
others  should  climb  by  the  same  ladder.  After  this,  and 
perhaps  on  this  account,  the  old  word  seneschal  came  again 
into  vogue. 

The  feudal  system  itself  presents  to  us  an  instance  of  a 
vast  and  complicated  institution,  growing  up  out  of  the  union 
of  vassality,  the  beneficiary  holding  of  property  and  tcrri- 

*Conip.  Waitz.,  u.  s.,  ii.,  411-428  (cd.  2);  Rotli  Ik'iiolicialw.,  p. 
236,  309,  357  ;  and  of  older  writers,  l,i3bell,  Gregor  von  Tours,  p. 
183;  Perz,  Hausmeier,  Hanover,  1819. 


S6o 


POLITICAL  SCIENCE. 


torial  jurisdiction  or  immunity  from  the  counts'  control, 
together  with  mihtary  obHgations  attached  to  the  tenure  of 
land.  (^Comp.  ^  i/O.)  And  another  fine  examiDle  of  the 
growth  of  institutions  is  furnished  by  the  rise  of  the  mediae- 
val towns  in  a  large  part  of  Europe.  But  of  these  we  have 
either  spoken  already  or  they  are  too  vast  a  field  for  the 
present  essay.  The  same  may  be  said  of  the  new  growth  of 
monarchy  in  Europe,  after  it  had  lost  nearly  all  its  powers  by 
the  encroachments  of  the  feudal  nobility.  This  is  an  insti- 
tution, the  highest  in  the  state,  rehabilitated  in  conformity 
with  the  new  wants  of  society  for  unity  and  order,  which 
wants  did  not  act  with  any  plan  of  reform,  but  in  a  blind  way 
and  by  a  thousand  new  steps  in  the  dark.  An  institution  of 
the  French  monarchy,  the  parliament,  we  may  sever  from 
the  other  instruments  of  its  advance  as  an  additional  instance 
of  the  growth  of  institutions  and  as  being  within  the  compass 
of  the  present  sketch. 

4.  The  French  Parliaments,  especially  the  parliament  of 
French  parlia-  P^i'is-  The  word  parlinuicnt ,  from  parabola, 
a  parable,  which  came  to  be  used  in  later  Latin 
in  the  sense  of  word  (Span,  palabra,  old  Ital.  paraula,  Fr. 
parole),  gave  birth  to  parlarc,  parlcr,  and  these  to  parlauicnto, 
a  talk,  a  parley,  a  meeting  for  counsel  or  assembly,  a  coun- 
cil, parliament.  Hence  in  French  and  Italian  the  derived 
verbs  parlamcntarc ,  parlemeiiter,  denote  the  holding  of  a  par- 
ley between  officers  respecting  the  surrender  of  a  town,  and 
a  cartel-ship  is  called  a  parlcincntaire.  (Comp.  >^  183,  p.  62.) 

The  kings  of  France  held  their  cnrice,  like  their  vassals, 
where  both  deliberations  on  public  affairs,  and  important 
trials  took  place.  Here  were  gathered  the  great  royal  offi- 
cers, the  bishops  and  abbots  depending  immediately  on  the 
king,  some  inferior  crown-vassals,  and  royal  counsellors  skilled 
in  law,  lay  or  clerical.  At  first,  matters  of  state  and  matters 
of  justice  came  before  all  called  to  the  council  or  curia  regis 
alike.  In  the  thirteenth  century  this  curia  was  divided. 
The  meeting  where  the  affairs  of  state  were  considered  bore 
the  name  of  consilium  regis  ;  that  where  trials  at  law  were 


INSTITUTIONS,  LOCAL  AND  SELF  GOVERNMENTS. 


361 


decided  bore  the  name  of  parlaincnt  in  the  thirteenth  century. 
It  would  seem  that  at  first  the  king  presided  in  both,  but 
rarely  took  his  seat  in  the  court  of  justice.  The  separation 
■which  commenced  under  Philip  Augustus  (A. D.  1180-1223) 
was  made  complete  under  Louis  IX.  ( 1 226-1 270).  The 
sittings  were  to  be  at  Paris.  The  members  who  attended 
were  chiefly  councillors  skilled  in  law,  the  grandees  apparently 
feeling  their  incompetence  to  deal  with  such  matters.  The 
process  was  either  by  arrets,  that  is  by  decisions  on  prepared 
cases  submitted  by  the  advocates  of  the  parties,  or  enquttcs, 
where  the  evidence  was  brought  before  the  parliament  itself. 
Besides  these  proceedings,  mandates  or  precepts  were  issued, 
granting  a  time  within  which  the  parties  could  make  up  their 
cases.  The  competence  of  the  parliament  included  especially 
cases  of  appeal  from  the  provinces,  cases  of  the  king  against 
a  town,  cases  where  a  commune  had  a  litigation  with  its  feud- 
al lord  in  regard  to  the  extent  of  its  jurisdiction  under  its 
charta. 

The  parliament  of  Paris  received  its  substantial  form  un- 
der Louis  IX.  ;  but  successive  ordinances  from  the  reign  of 
Philip  the  Fair  to  the  "great  ordinance"  so  called,  of  1453, 
completed  its  organization.  Instead  of  changing  at  each 
session  in  its  composition,  it  consisted  of  the  same  members, 
who  at  length  were  appointed  for  life.  It  was  now  composed 
of  both  paid  and  other  members  ;  those  who  received  no  pay 
answering  to  the  principal  persons  invited  to  the  old  curia 
regis,  who  however  tried  to  get  rid  of  the  service,  as  much  as 
possible,  and  only  appeared  on  special  occasions.  Prelates 
could  not  be  chosen  as  ordinary  members  of  the  parliament, 
and  not  long  afterwards  baillis  and  seneschals  were  forbidden 
to  sit  in  them.  There  was,  under  Philip  the  Fair,  a  di\  ision 
of  the  parliament  into  two  chambers  corresponding  with  the 
special  business.  The  chamber  of  arrets  or  decrees  was  es- 
pecially called  the  parliament  ;  while  that  of  ciiqnites  was 
itself  divided  into  two,  and  in  1320  a  chamber  o(  rc<jiu'tes  was 
added.  In  the  fourteenth  and  fifteenth  centuries  other  par- 
liaments, sometimes  looked  on  as  branches  of  that  at  Paris, 


362 


POLITICAL  SCIENCE. 


were  set  up.  The  jurisdiction  of  this  latter  court  embraced, 
in  1453,  cases  touching  the  royal  domains,  the  regalia  and 
high  criminal  justice  ;  the  suits  of  the  peers  of  France  touch- 
ing the  lands  held  by  them  as  peers  and  their  apanages ; 
those  of  prelates,  chapters,  counts,  barons,  towns  and  their 
echevins,  and  of  other  communities  and  high  personages,  who 
were  allowed  by  privilege  or  usage  to  have  this  for  their  regu- 
lar court.  These  with  appeal  cases  from  all  parts  of  the 
kingdom,  unless  where  a  grandee  had  received  a  special  privi- 
lege de  lion  appellando,  formed  the  principal  business.  After 
the  foundation  of  other  parliaments  this  competence  of  the 
parliament  of  Paris  was  restricted. 

A  special  function  of  this  court  gave  it  a  certain  political 
bearing.    We  refer  to  the  registration  of  the  royal  ordinances, 
and  the  right  by  usage  which  the  parliament  acquired  of  re- 
fusing their  assent  to  such  registration.    This  right  grew  out 
of  the  practice  in  early  times  of  making  known  the  ordinances 
at  the  meeting  of  the  curia  regis  where  they  would  naturally 
be  known  and  even  published,  as  the  baillis  and  seneschals  oi 
the  various  districts  where  they  were  binding  would  be  there 
assembled.    In  process  of  time  the  parliament  or  judicial  side 
of  the  curia  kept  registers,  and  before  the  ordinances  were 
made  known  examined  them  and  offered  their  objections 
against  them.    From  this  grew  up  the  usage,  where  no  such 
examination  had  taken  place,  for  their  secretary  to  add  a 
note  in  the  register  that  the  parliament  had  not  consented  to 
the  ordinance  in  question  ;  and  from  this  the  further  usage 
or  right  to  make  objections  against  ordinances  and  refuse  to 
have  them  enregistered.    The  first  case  of  this  kind  occurred, 
it  is  said,  in  1411.    The  kings  at  an  early  time  felt  that  this 
was  an  invasion  of  their  sovereignty,  but  such  was  the  pres- 
tige of  the  supreme  court  that  Louis  XI.  gave  way  to  their 
remonstrances,  on  an  occasion  when  the  president  of  the  par- 
liament, with  the  counsellors  or  members,  appeared  in  their 
robes  before  him  and  threatened  to  lay  down  their  offices 
sooner  than  be  forced  to  register  the  edict  laid  before  them. 
Such  force  was  practised  in  a  session  where  the  king  was 


INSTITUTIONS,  LOCAL  AND  SELF  GOVERNMENTS.  363 


present  and  which  had  long  been  known  as  a  bed  of  justice, 
in  1563,  for  the  first  time.  Thus  the  beginnings  of  a  power 
over  the  laws,  answering  to  that  of  the  English  parliament, 
were  resisted  by  the  growth  of  arbitrary  power.  If  tlie  par- 
liament persisted  in  its  opposition,  it  might  be  banished  from 
Paris  or  dissolved,  or  its  members  be  visited  by  lettres 
de  cachet.  But  as  it  was  a  necessary  institution,  it  would  soon 
be  restored  to  its  old  standing.  The  later  kings  qualified  this 
power  of  registration. 

The  history  of  the  French  parliaments  is  interesting,  as  far 
as  their  institutional  character  is  concerned,  because,  while 
they  were  rooted  in  early  Germanic  usages,  they  departed 
from  their  earlier  form  in  their  later  development,  and  were 
then  variously  modified  by  positive  enactments.* 

5.  Pensionaries,  as  the  word  is  applied  to  the  grand  pen- 
sionary of  Holland.  A  principle  of  old  German  justice  was 
that  there  could  be  no  court,  unless  the  people  qualified  to  sit 
and  vote  in  the  court  were  assembled.  Before  Charlemagne, 
when  among  the  Franks,  the  people  (as  of  a  hundred)  were 
called  together,  there  were  certain  persons,  seven  in  number, 
called  rachimburgi,  whose  office  it  was,  not  to  bring  in  a  ver- 
dict, but  to  prepare  a  project  of  a  verdict  which  was  to  be 
laid  before  the  assembly  for  their  approval  or  rejection. 

The  meeting  of  the  free  inhabitants  of  a  hundred  for  pur- 
poses of  justice  became  an  intolerable  burden,  especially  be- 
cause the  judge  could  call  them  together  when  he  would,  and 
in  case  of  the  non-appearance  of  a  freeman  could  exact  from 
him  a  fine.  This  power  of  the  count  or  his  deputy  opened 
the  door  to  great  abuses  and  ground  down  the  poorer  free- 
men. By  a  law  of  Charlemange  the  body  of  the  freemen 
were  excused  from  this  service  in  courts,  and  only  the  seven 
rachimburgi  were  required  to  be  present,  who  thenceforth 
were  no  longer  to  be  chosen  for  the  present  occasion,  but  to 
be  an  official,  permanent  body,  in  a  sense  assessors  of  the 

*  Much  has  been  written  on  the  parliaments  of  France.  I  have 
followed  Wariikonig,  Franz.  Staatsgesch.,  vol.  i.,  in  various  places, 
esp.  §§  141,  183. 


364 


POLITICAL  SCIENCE. 


count.  This  change  was  connected  with  a  change  of  name  ; 
they  were  now  called  scabinci  or  scabini  (from  the  root  scafaii, 
to  draw  out,  to  ordain),  a  word  which,  in  various  forms,  and 
sometinies  with  a  loss  of  its  original  sense,  appears  in  various 
languages,  and  shows  the  spread  of  the  institution." 

In  many  of  the  towns,  especially  in  German}',  the  Dutch 
provinces  and  Flanders,  the  scabini  formed  an  upper  class  of 
inhabitants,  from  whom  the  town  councils  and  the  principal 
boards  of  judges  were  selected.  At  the  time  when  the  Sach- 
senspiegel  was  composed,  the  word  sclivffcnbar ,  i.  c,  capable 
of  becoming  a  schofife,  denoted  a  hereditary  rank,  the  fifth  in 
order  and  the  next  after  the  freie  herrcn.  At  Ghent  there 
were  thirteen  of  these  schofifen  in  the  court  of  judges,  thirteen 
in  the  council,  and  thirteen  who  had  no  official  place.  At 
Bruges  there  were  thirteen  lifelong  ones,  and  the  same  num- 
ber of  councillors,  that  is,  twelve  of  each,  with  a  burgomaster 
of  their  number. 

These  town-officers  or  judges  were  often  wealthy  citizens 
who  knew  little  of  law,  so  that  they  needed  advisers,  the  more 
if  their  office  continued  but  a  single  year.  Their  advisers 
were  called  pensionaries  from  the  pay  given  to  them,  and 
after  the  Roman  law  began  to  spread,  were  usually  doctors 
or  licentiates  of  law,  who  did  not  change  with  the  change  of 
the  schoffen,  but  had  a  more  permanent  appointment.  The 
same  practice  prevailed  at  the  meetings  of  the  estates  of  a 
province.  Thus  in  Holland  the  grand  pensionary  was  the 
paid  officer  or  attorney  of  the  estates,  and  in  a  town  the  pen- 
sionary was  the  attorney  of  the  town  judges  or  town  council. 
Olden- Barnevelt  was  at  first  pensionary  of  Rotterdam  (which 
office  Grotius  filled  afterwards),  and  then  grand  pensionary  ; 
as  such  he  would  be  present  at  the  meetings  of  the  estates 

*  Conii).  ("irimm,  1).  Rechtsalterth.,  j).  775,  cd.  i  ;  Diet/.,  Elyniol. 
Wort,  sub  voce  in  part  first.  In  llie  (icrmanic  dialects  it  is  :  scepen,  old 
Saxon;  sceffeno,  old  high  (ierm.;  sciiot^c,  sch(ii)pe,  (ierm.;  scliocpe, 
Dutch  ;  sciiei)e,  Klein.;  and  in  the  Romanic:  scabino,  schiavino, /A?/.; 
esclavin,  Span.;  ochevin,  Fr.  For  the  institution  of  Charlemagne 
relating  to  scabini  1  have  referred  to  Sohni,  Frank.  Reichs-u-Gerichts- 
verfass.,  §  18,  in  another  place. 


INSTITUTIONS,  LOCAL  AND  SELF  GOVERNMENTS.  365 


of  Holland  or  of  the  states-general  as  the  principal  agent  of 
the  leading  province. 

One  of  the  most  beautiful  instances  of  an  institution  that 
can  be  found  in  all  history  is  the  rise  and  progress  of  the 
English  house  of  commons  ;  but  as  we  have  considered  this 
in  another  place,  it  is  needless  to  dwell  on  it  here  again. 

We  have  seen  that  in  the  later  stages  of  a  country's  prog- 
ress, the  power  of  founding  new  institutions  no  longer  exists, 
or,  at  least,  is  greatly  abridged.  But  the  benefits  of  institu- 
tions still  continue,  one  of  which  is  the  steadfastness  of  politi- 
cal habits,  which  is  the  greatest  of  political  blessings,  above 
all  in  times  of  revolution.  Another  is  that  the  analogy  of 
tried  institutions  furnished  a  norm  for  new  ones  of  the  same 
kind,  but  differently  applied.  A  third  is  that  an  institution 
is  something,  if  it  be  indeed  national,  on  which  the  interests 
of  a  people  can  fasten.  A  country  without  them  is  like  a  land 
without  mountains  ;  it  is  these  that  awaken  a  perpetual  joy  in 
the  soul.  Their  general  tendency  is  in  favor  of  freedom, 
although  there  may  be  despotic  institutions.  But  despotism 
generally  dislikes  institutions  because  they  have  an  indepen- 
dent existence,  and  thus  resist  arbitrary  will. 

^  236. 

Local  government   and  self-government. — Centralized  and 
distributed  poxvers. 

If  the  parts  of  a  country  or  the  parts  of  the  world  are  to 
have  any  intercourse  with  one  another,  there  must  be  differ- 
ences of  production  corresponding  with  soil,  climate,  acquired 
skill,  helps  to  industry,  and  differences  in  the  distribution  of 
a  people  over  the  surface  of  a  country.  There  will  be  ports 
most  accessible  orsafc,  places  most  favorable  for  certain  kinds 
of  labor,  or  convenient  as  entrepots  and  markets.  Where  the 
soil  and  climate  call  to  agriculture,  only  a  few  trades  and  oper- 
ations besides  that  can  find  a  sui)port.  Where  ports  or  manu- 
facturing towns,  or  entrepots  exist,  if  they  are  large  enough, 


366 


POLITICAL  SCIENCE. 


many  trades  will  find  them  the  best  places  for  their  operations, 
and  the  facilities  of  living  will  increase  as  divisions  of  labor 
multiply.  It  is  impossible  for  the  manufacturer  to  be  always 
near  to  the  farmer,  and  the  true  interests  of  both  are  best 
consulted,  when  they  can  buy  and  sell  in  the  cheapest  mar- 
ket, and  not  when  centres  of  business  are  artificially  stimula- 
ted by  protective  tariffs. 

Now  all  these  places  need  some  kind  of  political  protection. 
Government  need-  but  ^  township  whcrc  thcrc  is  a  scattered  popu- 

ed  by  cities  and   a         .  * 

scattered  population,  latiou  With  at  most  a  Village  or  two,  needs  one 
kind  of  government,  while  a  city  with  a  compact  population 
needs  another.  They  both,  however,  agree  in  this  that  they 
hav^e  special  wants  of  their  own  which  are  best  known  to  the 
residents,  while  in  other  respects  their  interests  cannot  be 
separated  from  the  interests  of  the  general  country. 

The  question  now  arises  how  can  these  civic  or  rural  com- 
munities be  best  governed — by  a  control  emanating  from  a 
central  authority  with  no  self-government  on  their  part,  or  by 
a  general  law  (or,  it  may  be,  a  special  charter),  dependent  on 
the  legislative  will  of  the  country,  yet  conferring  on  them 
powers  of  local  administration  and  legislation,  within  certain 
limits  and  under  certain  restrictions.  This  is  a  very  great 
question,  apart  from  the  comparative  advantages  of  the  cen- 
tral and  the  local  government,  and  in  a  free  nation  one  of 
surpassing  importance.  For  instance,  in  a  large  state  belong- 
ing to  our  union  there  are  some  five  hundred  townships,  be- 
sides a  large  number  of  villages  and  many  cities.  A  bad  gov- 
ernment for  all  of  these  unfits  the  state  as  a  whole  to  govern 
itself  well  ;  a  bad  government  for  a  large  city  does  more  than 
this — it  spreads  a  pestilential  influence  over  ?\l  the  surround- 
ing country. 

The  instinct  of  a  free  people  is  to  leave  as  much  self-gov- 
Seifgovcrnmcnt  ernmcut  to  cvciy  part  as  is  consistent  with  one 
o^'"^""^-  law,  one  administration,  one  general  supervision 

pervading  the  whole  state  ;  and  in  the  local  community  to 
prevent  officials  from  oppressing  individuals,  and  all  town 
authorities  from  neglecting  their  duties.    The  instinct  of  a 


INSTITUTIONS,  LOCAL  AND  SELF  GOVERNMENTS.  367 


despotism  is  to  dread  any  independent  or  partly  independent 
control  within  its  own  limits,  even  if  that  be  restricted  locally 
and  in  its  amount.  The  instinct  of  such  a  government,  even 
when  paternal,  is  to  distrust  the  capacity  of  any  smaller  com- 
munity to  do  anything  for  itself  without  first  obtaining  leave. 
If  a  country  were  left  to  itself,  the  towns  would  inevitably 
have  some  kind  of  law  and  administration  of  their  own.  But 
there  would  be  a  danger  of  a  great  splitting  up  of  territory, 
which  would,  by  its  lawlessness,  end  in  tyranny  and  centraliza- 
tion, or,  by  its  want  of  common  law  and  control,  prevent 
perfect  freedom  of  intercourse.  This  extreme,  we  must  con- 
fess, would  be  worse  than  the  other,  which  makes  intercourse 
and  life  safe  by  the  power  of  a  common  master.  The  early 
tyrannies  were  blessings  to  the  world  by  uniting  small  com- 
munities, but  is  there  not  a  more  excellent  way  than  either? 
There  is,  wc  think,  a  more  excellent  way.  It  is  to  unite 
Union  of  local  and  general  government  and  local  self-government 
general  government.  j^,^  proportions  and  SO  that  thcy  shall 

not  interfere  with  one  another.  But  this  balance  between  the 
powers  of  the  state  and  of  a  city  or  town,  a  creature  of  the 
state,  must  be  confessed  to  be  as  difficult,  if  not  more  difficult 
than  that  between  the  state  and  the  confederation  in  a  federal 
system. 

§  237. 

Here  it  seems  necessary  before  we  proceed  further  to  en- 
Ccntrai  .imi  dis-  dcavor  to  make  the  proper  distinctions  between 
tributed  power.  centralization  and  distribution  of  power.  De 
Tocquevillc,  honored  alike  at  home  and  with  us,  in  his  Democ- 
racy in  America,  makes  two  kinds  of  centralization  ;  one  in 
which  the  power  controlling  \.\\c  g^citcral  interests  is  centred  in 
one  place  or  in  the  same  persons  so  as  to  constitute  a  central 
government ;  the  other  the  power  which  directs  partial  or 
local  interests  and  proceeds  from  a  central  administration.  If 
central  government,  he  continues,  is  united  to  administrative 
centralization,  its  jjowers  thus  accjuircd  are  immense.  These 
two  kinds  of  centralization  must  not  be  supposed  to  be  insepa- 


368 


POLITICAL  SCIENCE. 


rable.  The  government  of  France  under  Louis  XIV.  was 
thoroughly  central,  yet  the  administration  was  much  less 
central  than  it  came  to  be  after  that  time,  and  was  when  De 
Tocqueviile  wrote  under  Louis  Philippe.  In  England,  he 
adds,  the  centralization  of  government  is  carried  to  great  per- 
fection ;  and  so  far  from  supposing  that  the  American  go\  ern- 
ments  are  not  sufficiently  centralized,  he  undertakes  to  prove 
that  they  are  too  much  so.  "  The  legislative  bodies  daily 
encroach  upon  the  authority  of  the  government,  and  their 
tendency,  like  that  of  the  French  convention,  is  to  appropri- 
ate it  entirely  to  themselves."  (i.,  91.)  If  we  understand  this 
passage,  it  means  the  transfer  of  authority  from  one  branch, 
the  executive,  to  another,  the  legislative,  which  certainly  may 
be  an  evil,  and  in  some  respects  is  admitted  to  be  one  in  all 
the  reformed  constitutions,  which  limit  the  power  of  the  legis- 
latures. Yet,  on  the  whole,  the  authority  of  the  state  govern- 
ments, where  one  independent  body  administers,  another 
interprets  the  laws,  where  all  the  officials  are  responsible,  and 
can  enforce  what  they  claim  to  be  the  observance  of  the  law 
only  by  trial  before  the  courts  in  the  last  instance,  is  not 
excessive.  The  general  government  can  be  defended  with 
less  justice  from  the  tendency  towards  centralization.  In 
order,  however,  to  compare  governmental  power  in  this 
country  with  the  same  power  in  countries  where  no  federal 
system  exists,  must  we  not  compare  the  sum  total  of  attri- 
butes, both  of  the  state  and  the  general  governments,  with  the 
powers  of  a  simple  one  as  of  a  united  monarchy  ?  If  we  so 
proceed,  we  shall  not,  I  think,  find  them  greater  here  than 
elsewhere  in  theory,  and  the  constitutional  checks  are  great 
as  between  the  government  of  the  state  and  that  of  the  union. 

To  prevent  the  undue  strength  of  the  general  government, 
there  must  be  responsbility  of  every  executive  officer  who 
advises  and  administers,  down  to  the  lowest  functionary.  If  a 
case  has  been  brought  before  the  courts,  it  must  serve  as  a 
precedent  binding  on  all  officials.  The  meanest  person  must 
be  able  to  get  justice,  not  by  petition  addressed  to  the  head 
of  the  government,  but  by  prosecution  before  an  impartial 


INSTITUTIONS,  LOCAL  AND  SELF  GOVERNMENTS.  369 


tribunal.  There  must  be  no  absolute  control  over  the  army 
except  in  the  field,  no  power  of  taxation  vested  in  the  govern- 
ment, nor  of  raising  loans  without  the  consent  of  the  legisla- 
ture. The  checks  which  have  been  elaborated  by  the  English 
race,  not  theoretically,  but  in  the  course  of  a  long  experience, 
are  consistent  (as  M.  De  Tocquevillc  admits  when  he  says  that, 
"  in  England  the  centralization  of  government  has  been  car- 
ried to  a  great  perfection  ")  with  a  vigorous  and  steady  man- 
agement of  affairs,  and  they  prevent  many  of  the  evils  of 
which  centralization  is,  if  not  the  procuring,  yet  the  helping 
cause. 

We  pass  on  to  what  the  French  have  called  "  central  ad- 
ministration," which  may  be  defined  the  control  of  the  cen- 
tral government,  or  the  executive,  over  every  interest,  local 
as  well  as  general,  through  a  whole  country,  so  that  no  indi- 
vidual or  community  may  go  out  of  a  beaten  track  without 
being  reined  in  by  an  agent  of  the  central  power.  It  is  as  if  a 
parent  could  be  ever  present  with  his  children  so  that  they 
might  do  or  say  nothing  for  which  they  could  not  be  rebuked 
at  the  moment,  or  for  which  leave  must  not  at  the  time  be 
asked.  There  must  be  no  general  rules  which  they  are  to  fol- 
low or  disobey  at  their  own  risk.  Carried  out  in  a  nation,  it 
would  make  government  the  only  banker,  road-builder,  for- 
warder ;  as  well  as  the  overseer,  by  its  agents,  of  all  the  inter- 
ests in  all  the  communities  of  a  country.  That  thus  all  in- 
dustrial as  well  as  political  freedom  would  run  the  risk  of 
being  extinguished,  is  apparent. 

But  it  is  with  the  management  of  local  affairs  that  we  are 
now  concerned.  Of  this  administrative  centralization,  M.  de 
Tocqueville  gives  us  a  picture  in  his  Old  Regime  and  the  Revo- 
lution, published  not  long  after  Louis  Napoleon  became  em- 
peror. It  was  no  new  acquisition  of  the  revolution,  but  grew 
up  out  of  the  powers  accumulated  in  the  royal  council,  as  the 
kings  usurped  the  powers  of  the  great  feudal  lords  of  the  land. 
The  council  came  to  have,  as  the  king's  adviser,  judicial,  ad- 
ministrative, and  even,  m  a  certain  sense,  legislative  powers  in 
its  hands ;  it  levied  and  distributed  taxes,  it  controlled  other 
VOL.  ir.— 24 


370 


POLITICAL  SCIENCE. 


administrative  authorities,  and  could  reverse  the  decisions  of 
ordinary  tribunals.  Under  this  council  the  comptroller-gene- 
ral engrossed  the  management  of  all  money-affairs,  acting 
alternately  as  "  minister  of  finance,  of  the  interior,  of  public 
works  and  of  commerce."  The  government  of  the  provinces 
came  into  the  hands  of  intendants,  although  some  of  the 
great  nobles,  as  provincial  governors,  enjoyed  the  honor  of 
governing  without  the  power.  The  intendants  were  gener- 
ally members  of  the  royal  council  of  inferior  position  ;  they 
held  administrative  and  judicial  power,  yet  with  right  of  ap- 
peal from  their  decisions  ;  they  levied  all  the  taxes  except 
those  that  were  not  farmed  out  by  the  council,  regulated  the 
system  of  militia,  and  to  a  great  extent,  the  public  works, 
roads  and  bridges,  secured  peace  in  the  provinces  with  the 
help  of  a  mounted  police,  aided  in  the  support  of  the  poor, 
and  so  on,  subject  in  everything  to  the  control  of  the  coun- 
cil. There  were  many  seeming  exceptions  to  this  sway,  yet 
even  the  courts  could  not  retain  any  freedom.  "  It  is  liardly 
possible,"  says  De  Tocqueville,  "  to  mention  a  branch  of  social 
economy  or  political  organization,  which  had  not  been  re- 
modelled by  orders  of  council  during  the  last  forty  years  of 
the  old  regime "  (chap,  ii.,  end).  In  the  cities  municipal 
liberty  outlived  feudalism,  so  that  "long  after  the  seigniors 
had  ceased  to  administer  the  government  of  the  rural  dis- 
tricts, the  cities  retained  the  right  of  self-government ;  "  but 
after  1692  the  kings  sold  the  places  of  magistrates  in  the 
towns  for  the  purpose  of  raising  money — a  plan  pursued  with 
other  posts  also,  such  as  those  in  the  courts  of  justice. 
During  eighty  years  the  towns  purchased  back  the  right  of 
electing  their  magistrates  "  seven  times,"  and  seven  times 
was  the  right  taken  away,  as  soon  as  they  had  learned  to  ap- 
preciate its  value.  "  In  the  eighteenth  century  municipal 
government  had  degenerated  into  oligarchy.  A  few  families 
controlled  the  public  affairs  in  fivor  of  private  interests  with- 
out the  knowledge  of,  or  any  responsibility  to,  the  public." 
But  these  municipal  authorities  were  themselves  interfered 
with  by  the  council,  which  not  only  modified  the  city  govern- 


INSTITUTIONS,  LOCAL  AND  SELF  GOVERNMENTS.  3/1 


ments  from  time  to  time,  but  on  advice  of  the  intendants, 
sanctioned  special  laws,  often  without  knowledge  of  the 
people  (chap.  iii.).  One  of  the  most  striking  features  of 
city  administration  "  in  the  eighteenth  century  is,  not  the  ab- 
sence of  all  representation  and  intervention  of  the  public  in 
city  business,  but  the  extreme  variability  of  the  rules  govern- 
ing such  administration.  Civic  rights  were  constantly  bestowed, 
taken  away,  restored,  increased,  modified  in  a  thousand  ways 
and  unceasingly.  No  better  indication  of  the  contempt  into 
which  all  local  liberties  had  fallen  can  be  found  than  these 
eternal  changes  of  laws,  which  no  one  seemed  to  notice. 
This  mobility  would  alone  have  sufficed  to  destroy  all  initia- 
tive or  recuperative  energy,  and  all  local  patriotism  in  the  in- 
stitution which  is  best  adapted  to  it.  It  helped  to  prepare 
the  great  work  of  destruction,  which  was  to  be  effected  by 
the  revolution."  (Note  to  chap,  iii.,  p.  66,  of  the  Amer.  transl.) 

No  better  example  could  be  given  of  the  evil  of  meddling 
with  municipal  liberties  by  a  despotical  government,  and  of 
doing  this  without  rule  or  general  system,  just  as  the  cities  at 
their  origin  in  the  middle  ages  had  acquired  their  liberties, 
each  for  itself  without  rule  or  general  system. 

§238. 

The  subject  thus  far,  in  its  relations  to  local  government, 
Advantages  of  lo-  ^as  bome  both  upon  the  government  of  cities 
caUeif-goven,mcnt.         ^j-  pj^^^^  ^j^j^fl^  agHcultural ,  where  the 

population  is  for  the  most  part  scattered.  We  shall  in  a 
word  or  tvvo  consider  the  advantages  of  investing  these  with 
the  privilege  of  self-government,  and  then  treat  of  the  two, 
each  by  itself. 

The  great  advantage  is  that  it  trains  up  a  people  for  the 
exercise  of  its  political  rights,  in  all  parts  of  a  country,  so 
that,  if  there  were  a  perfect  general  or  central  government 
possible,  some  participation  of  each  city  or  township  in  local 
affairs  would  still  be  desirable.  To  grant  political  rights,  as 
the  suffrage,  and  restrict  them  to  occasions  where  the  indi- 
vidual judgment  has  no  experience  or  knowledge  to  guide  it, 


372 


POLITICAL  SCIENCE. 


is  a  questionable  benefit.  If  it  should  be  said  that  ignorance 
or  inexperience  may  be  a  cause  of  great  harm,  even  within  the 
♦  small  sphere  of  local  affairs,  the  ready  answer  is  that  the 
possibility  is  even  greater  in  family  affairs.  Would  you  put 
the  community  under  tutelage  to  the  public  lest  it  should 
make  mistakes,  you  ought  to  do  the  same  in  all  similar  cases. 
The  community  must  be  taught  by  its  mistakes.  It  has  no 
need  to  be  invested  with  powers  that  might  ruin  its  future 
prosperity,  as  for  instance  with  that  of  unlimited  self-taxation  ; 
but,  if  empowered  to  do  what  its  local  needs  require,  its  in- 
habitants will  grow  in  reflection,  in  intelligence,  even  touch- 
ing their  own  private  affairs,  and  in  a  sense  of  responsibility. 

Again,  the  people  of  each  community  have  special  wants 
which  are  better  known  to  themselves  than  they  could  be  to 
some  guardian  chosen  for  them  by  the  public.  Indeed,  it 
would  be  altogether  likely,  if  this  mode  of  administration 
were  pursued,  that  the  guardian  would  follow  the  advice  of 
some  of  the  principal  inhabitants,  and  that  this  would  cause  a 
greater  dissatisfaction  than  any  decision  made  by  the  body 
acting  freely. 

The  same  plan  of  self-government  excites  what  we  called 
public  or  common  spirit  in  a  far  greater  degree  than  could  be 
done  if  the  smaller  communities  were  merely  passive.  Pa- 
triotism is  a  complicated  feeling,  which  is  due  in  part  to  men's 
identifying  themselves  with  their  country  by  a  participation 
in  its  affairs.  The  aid  of  the  feelings  kindled  by  local  self- 
government  is  especially  needed  in  an  age  when  news  circu- 
lates everywhere,  when  men  can  think  and  criticise.  He  who, 
in  such  an  age,  under  a  system  of  centralization,  would  grum- 
ble at  the  government,  would,  in  a  community  which  manages 
its  own  local  affairs,  complain  of  the  other  party. 

The  importance  of  self  government  for  a  rural  population 
did  not  at  once  force  itself  upon  the  minds  of  reflecting  men, 
because  the  country  people  belonged,  mostly  as  serfs,  to  the 
lordship  or  manor,  and  the  habits  of  unreasoning  obedience 
were  enforced  by  church  and  state.  All  this  is  changed,  or 
is  in  a  process  of  change  in  all  Christian  lands,  so  that  the  old 


STITUTIONS,  LOCAL  AND  SELF  GOVERNMENTS,  373 


methods  of  securing  obedience  to  a  superior's  will  are  failing 
to  secure  their  ends.  Meantime,  the  other  plan,  it  is  found, 
has  raised  up  a  class  of  small  land-owners,  who  are  the  best 
protection  of  a  country  in  danger,  defending  it  as  much  as  it 
defends  them  ;  who  may  be  relied  upon  for  paying  taxes  and 
bearing  public  burdens,  who  expend  far  more  in  educating 
children  and  in  comforts  than  an  equally  large  community  of 
tenants  would,  or  of  farm  laborers  ;  who  feel  the  stimulus  of 
the  possibility  to  raise  their  families  in  the  world,  which  would 
be  wanting  to  hereditary  tenants.  It  would  be  impossible, 
when  once  such  a  population  had  managed  its  own  affairs,  to 
take  this  power  away  without  struggles  certain  either  to  de- 
stroy the  central  power  or  to  insure  future  despotism. 

Some  of  these  considerations  apply  to  cities  as  well  as  to 
rural  communities.  There  are  others  which  are  peculiar  to 
the  former.  The  cities,  being  centres  of  industry  and  capital, 
need  special  and  greater  protection  against  internal  evils  ; 
they  understand  their  own  wants,  but,  owing  to  a  diversity 
of  classes  and  to  causes  growing  out  of  a  compact  population, 
find  self-government  harder  in  proportion  to  their  size  and 
compactness.  The  lower  classes  in  cities  have  in  general  a 
much  less  permanent  abode  than  in  country  communities, 
and  are  open  to  many  evil  influences.  In  free  states,  if  not  in 
all  states,  the  virtues  and  the  vices  of  society  are  seen  in  cities 
in  their  extremes ;  the  dread  of  the  frowns  of  men  is  not  felt 
by  the  vicious,  where  every  one  is  unknown  to  most  of  those 
whom  he  meets  and  can  find  companions  to  his  liking.  It  is 
evident  that  a  more  efficient  nocturnal,  sanitary  and  detective 
police  is  needed  in  cities  than  elsewhere  ;  that  a  fire  depart- 
ment is  there  a  great  interest  ;  that  drainage,  paving  of  streets 
and  of  sidewalks,  laws  in  regard  to  contiguous  buildings,  to 
markets,  garbage,  and  the  like,  have  their  home  in  cities, 
while  in  rural  districts  such  things  are  of  far  less  importance. 
Without  going  further  into  the  subject,  we  are  prepared  al- 
ready to  say  that  the  circle  of  duties  which  a  city  is  called  to 
do,  in  order  to  perform  its  appropriate  part  to  the  inhabitants 
and  to  the  state,  is  very  much  greater  than  that  of  the  rural 


374 


POLITICAL  SCIENCE. 


township.  Can  a  government,  depending  on  the  state  and  not 
on  the  voice  of  the  town,  discharge  these  duties?  Can  it  act 
as  a  representative  of  civic  interests  ?  It  would  seem  at  once 
that  we  must  say  no  ;  and  the  only  point  of  doubt  is  whether, 
under  defective  city  charters,  there  can  be  more  misgovern- 
ment  when  affairs  are  managed  by  an  administration  depend- 
ing on  the  central  power  or  on  one  elected  by  the  citizens. 

^  239. 

Passing  on  now  to  speak  first  of  cities  by  themselves,  we 
„         .  f  ,  lay  it  down  (i)  that  one  general  law  ought  to 

Government  of  cit-  \   /  o  o 

regulate  the  city  governments  in  a  state,  and 
that  no  special  regulations  ought  to  be  permitted,  except  by 
way  of  punishment,  or  on  representation  of  a  vast  majority 
should  be  the  same  o(  the  citizcns.*    In  most  of  the  countries  of 

Europe  such  a  general  law  might  be  difficult  of 
introduction,  because  forms  of  administration  were  given  to 
the  cities  in  the  middle  ages,  which  have  remained  in  sub- 
stance in  many  of  them  until  the  present  time.  But  we  ob- 
ject in  such  a  country  as  this  to  the  framing  of  a  separate 
charter  for  each  new  place  as  it  becomes  an  important  busi- 
ness centre.  Let  it  be  competent  for  the  inhabitants,  on 
reaching  a  certain  population — say  of  ten  or  fifteen  thousand 
souls — to  take  the  steps  laid  down  in  a  general  law,  to  have 
the  city  limits  fixed,  for  instance,  by  the  authorities  of  the 
county,  by  those  of  the  town  out  of  which  it  is  to  be  taken, 
and  by  a  deputation  from  the  projected  city.  Let  it  then 
come,  as  a  city,  under  the  operations  of  the  general  law, 

*The  new  constitution  of  Illinois  (1870)  prohibits  local  or  special 
laws  "incorporating  cities,  towns  or  villages,  or  changing  or  amending 
the  charter  of  any  town,  city,  or  village,"  or  "  providing  for  the  elec- 
tion of  members  of  the  board  of  sui)ervisors  in  townships,  incori)o- 
rated  towns,  or  villages."  The  new  constitution  of  Pennsylvania 
(1873),  in  a  similar  spirit  forbids  the  general  assembly  to  regulate  the 
affairs  of  counties,  cities,  townships,  wards,  boroughs,  or  school  dis- 
tricts ;  or  to  incorporate  cities,  towns,  or  villages,  or  change  their 
charters,  or  to  change  township  lines,  borough  limits,  or  school  dis- 
tricts by  local  or  special  laws.    Comp.,  however,  Art.  viii.,  Sec.  11. 


INSTITUTIONS,  LOCAL  AND  SELF  GOVERNMENTS.  375 


subject  to  all  the  duties  and  having  all  the  rights  of  commu- 
nities known  to  the  law  as  such.  If  it  fails  grossly  to  fulfil  its 
office,  let  the  legislature,  or  the  courts,  on  presentation  of  the 
case,  have  power  to  disfranchise  it,  or  in  some  way  restrict  the 
exercise  of  its  original  powers.  Occasions  may  arise  when 
the  powers  of  action  granted  in  the  general  charter  are  insuf- 
ficient to  meet  the  wants  of  the  city.  In  that  case  a  special 
enabling  act  would  be  required  to  do  the  work  in  question 
and  raise  the  sum  needed.  This  supposes  that  the  city  is  to 
undertake  a  work  itself,  which  for  certain  kinds  of  works, 
as  a  great  system  of  drainage  or  of  introducing  water, 
might  be  found  advisable.  Or  if  the  work  be  such  that  com- 
panies could  be  formed  by  individuals,  as  in  the  case  of  street- 
railroads,  gas-works,  or  water-supply,  and  the  city  did  not 
wish  to  do  this  at  its  own  cost,  by  its  consent  and  at  its  re- 
quest such  a  work  could  be  committed  to  private  hands.  In 
all  cases  where  a  heavy  outlay  and  somewhat  uncertain  return 
are  in  prospect,  it  is  far  the  best  plan  that  either  a  large  ma- 
jority of  the  capital  to  be  taxed  should  give  its  consent,  or  a 
still  larger  portion  of  the  inhabitants,  or  at  least,  if  any  con- 
siderable amount  of  capital  should  be  against  it,  the  higher 
authorities  of  the  state  should  give  their  ultimate  decision. 
By  no  means  ought  municipal  governments,  as  they  are  now 
constituted  and  elected,  to  have  a  speedy,  unchecked,  and  ulti- 
mate action,  where  expenses  for  public  buildings  or  for  other 
improvements  or  works  of  art  are  to  be  incurred  by  the  tax- 
payers. The  latter  ought  to  have  a  right  to  obstruct  such 
things,  until  it  can  be  made  to  appear  that  their  opposition  is 
unreasonable. 

2.  In  regard  to  the  government  of  cities,  we  meet  with  diffi- 
Difficuiiiesincity-  cultics  which  it  would  be  out  of  place  to  discuss 
nerc.  It  is  enough  to  say  that  these  arise  from 
the  want  of  a  responsible  head  ;  from  carelessness  in  manage- 
ment, by  which  embezzlement  of  city  funds  is  made  easy  or 
IS  easily  hidden  for  a  time  ;  by  bringing  party  considerations 
into  the  choice  of  all  elected  officers,  and  by  universal  suf- 
frage.   Our  large  cities  arc  the  hotbeds  where  caucuses  man- 


376 


POLITICAL  SCIENCE. 


aged  by  obscure  politicians,  private  bargains  of  office-seek- 
ers, devices  for  the  purchase,  at  great  expense,   of  things 
needed  for  pubHc  buildings,  erection  of  public  buildings 
by  dishonest  contract,  and  all  sorts  of  base  jobs  flourish. 
Why  is  this  so  ?     It  seems  to  be  so  partly,  because  so 
many  who  vote  arc  not  taxpayers  in  the  city  and  are  led 
by  others :   partly  because  there  is  not  sufficient  control 
lodged  in  the  mayor's  or  other  chief  officer's  hands.    If  he 
is  made  responsible,  some  of  the  evil  would  be  done  away. 
If,  where  taxes  are  voted,  as  in  the  boards  of  a  council,  capi- 
tal could  have  its  just  influence,  much  corruption  would  come 
to  an  end.    In  regard  to  the  election  of  city  governors,  it  may 
be  said  that  they  all  ought  to  be  chosen  by  the  city  itself. 
For  the  state  to  appoint  the  mayor  is  as  much  against  the 
true  principle  as  for  a  king  of  France  to  make  the  same 
appointment.    The  evils  which  such  a  plan  of  taking  elections 
out  of  the  hands  of  the  community  is  intended  to  remove  are 
party  elections,  and  election  by  those  who  have  nothing  to 
lose  by  a  choice  of  unprincipled  men.    But  an  election  by 
the  state  legislature,  or  an  appointment  by  the  governor, 
would  be  controlled  by  party  interests,  like  one  by  the  city 
itself.    As  for  election  by  universal  suffrage,  for  this  there  is 
no  cure  except  by  restricting  suffrage  in  civic  affairs  to  the 
taxpayers,  which  is  more  desirable  than  attainable.  But 
something  would  be  gained  if  a  certain  amount  of  capital, 
by  making  objections  to  a  tax,  could  in  some  way  cause  it  to 
be  more  maturely  considered.    As  it  is,  we  fear  that  larger 
capitalists  prefer  their  own  quiet ;  they  pay  what  is  assessed 
upon  them  without  complaint,  or  live  in  the  country,  or 
manage  to  have  their  property  not  taxed  at  all,  or  at  a  low 
rate. 

3.  The  power  or  competence  of  an  incorporated  city  need 
not  be  spoken  of  at  large.     It  may  be  said  nega- 

Amoiint  of  power  t  t>  J  o 

JO  be  given  to  cities,  ^jy^ly  that  it  ought  not  to  have  power  to  do 
anything  which  is  not  justly  deducible  from  the  purposes  for 
which  it  has  been  incorporated.  The  power  of  taxation  must 
belong  to  all  self-governing  communities,  but  it  is  too  great  a 


INSTITUTIONS,  LOCAL  AND  SELF  GOVERNMENTS.  377 


power  not  to  be  controlled.  And  when  we  say  this,  we  in- 
clude that  of  borrowing  money  for  municipal  purposes  ;  that 
is,  of  throwing  debts  upon  the  town  on  the  plea  that  it  will  by 
and  by  be  greatly  benefited  and  enriched  by  an  outlay.  On 
such  pleas  canals  and  railroads  have  been  aided  to  a  great 
extent  in  this  country,  not  only  by  cities  but  by  counties  also, 
until  unnecessary  and  useless  debts  yielding  no  adequate 
return  have  gone  beyond  the  power  of  the  place  to  pay,  or 
have  been  a  lasting  injury  to  its  growth.  The  remedy  for 
this  lies  not  in  cutting  off  from  the  municipalities  the  power 
of  laying  taxes  or  of  borrowing,  still  less  in  making  this 
power  dependent  on  the  will  of  the  legislature  ;  but  in  limit- 
ing by  a  general  charter  the  exercise  of  such  powers.  Care 
for  the  next  generation,  and  present  pecuniary  safety,  as  well 
as  honor,  require  some  such  provision  as  the  new  consti- 
tutions of  some  of  the  United  States  have  adopted  under  the 
sobering  lessons  of  experience.  Thus  the  constitution  of 
Illinois  (1870)  declares  that  "  no  county,  city,  township, 
school  district,  or  other  municipal  corporation  "  shall  contract 
a  debt  besides  that  already  existing,  exceeding  five  per  cen- 
tum on  the  last  assessed  value  of  the  taxable  property  within 
its  limits.  The  recent  constitution  of  Pennsylvania  contains 
provisions  the  same  in  their  general  principle.  But  this  is 
not  enough.  It  ought  to  be  placed  within  the  reach  of  the 
payers  of  taxes  on  property  situated  in  the  town  to  control 
such  projects,  which  may  be  mere  jobs  or  devised  for  pres- 
ent political  purposes.  The  simplest  control  would  be  to 
give  them  alone  the  right  to  vote,  where  taxes  are  to  be 
levied.  This  seems  to  be  the  only  way  within  the  reach  of 
our  institutions  in  the  United  States,  of  securing  municipali- 
ties against  financial  folly,  or  even  ruin,  since  all  must  vote 
for  town  officers,  and  party  controls  to  so  great  a  degree  in 
local  affairs.  A  short  time  since,  in  a  city  of  moderate  size, 
a  gathering  of  workingmcn  demanded  that  the  corporation 
of  the  place  should  appropriate  a  quarter  of  a  million  of  dol- 
lars in  order  to  furnish  work  for  the  unemployed.  A  city 
ought  to  be  unable  to  do  such  things,  for  the  habit  will  grow,  if 


378 


POLITICAL  SCIENCE. 


allowed,  until  as  at  Athens,  the  incomes  of  the  rich  are  almost 
held  to  be  public  property,  to  be  used  for  the  pleasures  of 
the  community. 

In  saying  this,  I  do  not  wish  to  be  understood  as  relying 
on  the  large  taxpayers  principally,  or  even  as  much  as  on 
those  whose  incomes  support  them  by  the  help  of  economy. 
The  very  rich  are  little  concerned  in  town  affairs,  too  little  in 
public  affairs,  so  that  if  they  were  disfranchised,  it  would 
work  no  great  harm  to  them  or  to  others.  I  have  heard  the 
remark  made  by  one  who  had  himself  served  in  town  coun- 
cils, that  aldermen  of  very  moderate  means  were  more  in- 
clined to  curtail  tax-bills  than  any  other  members.  The  rea- 
son is  that  they  themselves  feel  any  unnecessary  expenditure, 
and  they  know  what  men  possessed  of  similar  properties  can 
bear. 

That  a  control  of  a  legislature  over  a  city  budget  is  not 
enough  of  a  security  against  waste  or  fraud,  is  strikingly 
shown  by  the  instance  of  New  York,  where  the  state  can  and 
does  alter  the  charter  of  a  city  at  will,  and  where  the  actual 
debt,  a  part  of  it  incurred  by  gross  fraud,  a  part  by  paying 
much  more  for  work  or  constructions  than  was  needed,  is 
so  large  that  a  moderate  increase  must  cripple  the  interests 
of  business  to  a  great  extent,  if  not  drive  it  to  other  quar- 
ters. 

4.  The  elections  should  be  in  the  hands  of  all  who  can 
^vi,     K.,    .  vote  for  state  elections,  but  a  question  of  some 

W  no  ought  10  vote  '  ^ 

m  city  elections.  jmportancc  is  wlietlicr  inferior  judicial  officers, 
like  those  who  are  called  "  police  justices,"  and  the  police 
itself,  ought  to  be  in  any  way  under  the  control  of  the  popu- 
lar vote.  There  are  strong  and  evident  reasons  why  the  ap- 
pointment of  police  officers  should  be  in  tne  hands  of  the 
mayor,  subject  possibly  to  rejection  by  the  town  council. 
Those  officers,  again,  who  hold  police  courts,  if  chosen  by 
common  vote,  will  be  men  of  most  profound  ignorance  re- 
-specting  law,  who  have  no  character  to  lose,  who  have  been 
employed  in  the  mean  occupation  of  ward  politicians,  whose 
acquaintances  or  political  friends  are  likely  to  appear  before 


INSTITUTIONS,  LOCAL  AND  SELF  GOVERNMENTS.  379 


them  on  trial.*  As  for  the  police  itself,  to  make  it  possible 
for  the  dangerous  classes  in  a  city  to  choose,  or  indirectly 
control  the  choice  of  those  whose  work  it  is  to  ferret  them 
out,  and  bring  them  to  justice,  seems  so  absurd  that  it  can 
hardly  meet  with  favor  except  from  rogues  and  demagogues. 

Still  more  important  is  the  question  whether  all  the  citizens 
ought  to  be  allowed  to  vote  on,  or  indirectly  through  their 
representatives  in  town  councils,  to  influence  the  raising  of 
taxes.  If  our  principle  is  correct,  that  none  who  do  not  own 
property  should  vote  for  representatives  who  lay  taxes  on 
property,  the  mass  of  city  proletariats  ought  to  be  excluded 
from  the  polls  where  tax-levying  councilmen  or  officers  are 
elected.  That  for  some  reason  or  other  our  present  system 
is  exceedingly  bad,  the  experience  of  New  York  will  prove. 
In  1850  the  population  of  that  city  was  a  little  over  half  a 
million,  the  tax  levy  somewhat  over  three  millions,  the  esti- 
mate of  taxable  property,  286  millions,  the  tax-rate  1.13  per 
cent,  and  the  debt  over  twelve  millions.  In  1877  the  debt 
had  arisen  to  113  millions,  the  tax  levy  to  twenty  eight  mil- 
lions, and  the  rate  to  2.67  per  cent.  "The  increase  in  the 
annual  expenditure  since  1850,  as  compared  with  the  increased 
population,  is  more  than  four  hundred  per  cent.,  and  as  com- 
pared with  the  increase  of  taxable  property,  more  than  two 
hundred."  t  The  causes  of  this  alarming  state  of  things, 
which,  if  not  checked,  must  end  in  the  ruin  of  the  city,  is 
attributed  by  the  commission  referred  to  in  the  note,  to  in- 
competent and  unfaithful  governing  boards  and  officers,  to 
the  introduction  of  state  and  national  politics  into  municipal 
affairs,  and  to  the  assumption,  by  the  legislature  of  the  state, 

*  See  "  Our  Police  Courts,"  a  pamphlet  published  by  Mr.  Dornian 
B.  Katon,  and  es|)ecially  his  speech  there  found  (pp.  16-36),  before 
the  jiuliciary  committee  of  the  New  York  Asseml)ly,  in  1873.  Mr. 
Katon  lias  done  more  than  almost  all  other  men  in  this  country  in 
making  public,  and  trying  to  remedy,  numici[)al  abuses,  lie  deserves 
the  thanks  of  all. 

f  S(,'e  tile  report  of  the  commission  to  devise  a  i)lan  for  tlie  gov- 
ernment of  cities  in  the  State  of  New  York  (March  6,  1877).  This 
report  I  received  after  fuiishing  the  present  work. 


38o 


POLITICAL  SCIENCE. 


of  the  direct  control  of  local  affairs.  The  remedies  which 
they  recommend  are  principally  these  :  the  appointment  of  a 
chief  executive  officer  having  general  supervision,  with  the 
power  to  appoint  other  principal  executive  officers,  except  the 
chief  financial  and  law  officers  ;  and  of  a  board  of  finance 
elected  by  tax  and  rent  payers,  with  such  powers  only  as  relate 
to  taxation,  expenditure,  and  debt.  They  are  to  determine  the 
amount  of  annual  expenditure  and  to  appropriate  it  to  its 
various  objects  and  purposes.  The  board  of  aldermen  are  to 
have  nothing  to  do  with  these  financial  duties.  It  is  pro- 
posed also  that  no  money  shall  be  borrowed  or  debt  incurred 
except  under  certain  specified  conditions  not  likely  often  to 
arise. 

These  or  better  recommendations  must  be  adopted,  or,  in 
the  long  run,  well-governed  communities  will  take  the  start 
of  ill-governed.  New  York,  for  instance,  will  decline  by  an 
inevitable  law  of  retribution. — It  is  only  the  immense  im- 
portance of  the  subject  that  leads  us  in  a  work  like  this  into 
these  details. 

5.  The  election  of  mayors  is  of  especial  importance.  Shall 
it  be  in  the  hands  of  the  central  government,  or 

Election  of  mayors.  . 

of  the  town  councils,  or  of  the  people  ?  Ihe 
French  are  now  seeking  to  cut  the  connection  between  the 
mayor  and  the  government,  by  committing  the  choice  of  this 
magistrate  to  the  town  councils  (1876).  Hitherto  there  has 
been  a  great  fluctuation  in  the  system,  but  by  existing  law 
mayors  are  appointed  by  the  sovereign  in  every  chcf-lieu  of 
departments,  arrondissements  and  cantons,  and  by  the  prefect 
of  a  department  in  all  smaller  communes.  Certain  officials 
are  incapable  of  serving  in  this  capacity  while  they  hold  an- 
other office.  The  mayors  and  their  adjuncts  receive  no  salary, 
are  removable  by  the  sovereign,  and  may  be  suspended  by 
the  prefect  for  a  short  period,  which  the  central  government 
may  extend.  He  has  duties  as  representative  of  the  govern- 
ment, and  others  as  head  of  the  commune,  which  cannot  here 
be  noticed,  except  that  it  belongs  to  him  to  present  the  bud- 
get of  the  commune  to  the  council.    All  the  communes  of 


INSTITUTIONS,  LOCAL  AND  SELF  GOVERNMExNTS.     38 1 


France  are  subject  to  one  and  the  same  law,  except  Paris, 
where  the  prefect  of  the  Seine  acts  as  head-mayor,  and  every 
one  of  the  twenty  arrojidissemeiits  into  which  the  city  is  di- 
vided has  a  separate  mayor  of  its  own.  The  pohce  is  man- 
aged by  a  special  prefect,  and  the  unity  of  the  city  is  repre- 
sented by  a  common  council  of  eighty  members,  chosen  one 
from  each  of  the  four  quarters  into  which  the  arrondissements 
are  divided.  The  government  of  Lyons  also  is  formed  after 
a  model  nearly  similar  to  that  of  Paris.* 

In  England,  after  the  reform  bill  of  1832,  and  especially  by 
the  municipal  reform  act  of  1835,  great  changes  took  place 
in  the  government  of  the  boroughs,  where  various  abuses 
had  reigned  unchecked  for  several  centuries.  These  boroughs 
were  chiefly  under  the  control  of  town  councils  "  usually 
elected  for  life,  and  conducting  their  proceedings  with  closed 
doors,"  and  in  their  almost  entire  freedom  from  responsibility, 
using  their  offices  as  means  for  obtaining  trade  privileges  and 
as  ministering  to  parliamentary  corruption.  By  the  act  of 
1835,  town  governments  are  in  the  hands  of  a  mayor,  alder- 
men and  councillors,  i.  e.,  of  a  town  council.  The  council- 
lors are  chosen  by  the  burgesses  ;  they  must  be  burgesses 
themselves,  must  occupy  ratable  property,  var)-ing  with  the 
size  of  the  borough,  and  they  hold  ofifice  for  three  years.  The 
aldermen  are  elected  by  the  councillors,  and  hold  their  ofifice 
for  six  years,  one-half  of  their  number  retiring  every  third 
year  ;  *'  and  since  they  can  vote  for  their  successors,  it  is 
found  in  practice  that  a  party  which  is  strong  enough  to  re- 
turn a  large  majority  of  aldermen  is  not  easily  dislodged  from 
its  supremacy  in  the  town  council."  The  mayor  is  chosen 
by  and  from  the  council  every  year.  The  act  of  1835  vested 
no  magisterial  jurisdiction  in  the  councils  of  boroughs,  ex- 
cept that  the  mayor  and  cx-mayor  are  ex  officio  justices  of 
peace  ;  and  all  local  justice  is  administered  by  magistrates 
appointed  by  the  crown,  especially  by  a  magistrate  paid  by 


Count  de  Franquevillc  in  Cobdcn  Club  Essays,  1S75. 


382 


POLITICAL  SCIENCE, 


the  borough  (if  there  should  be  one  in  the  place),  called  a 
recorder.  ^ 

In  this  country  of  universal  suffrage,  experience  has  taught 
us  the  need  of  warding  against  evils  arising  from  certain 
plans  of  appointing  municipal  judges.  I  should  trust  as  little 
to  a  mayor  chosen  by  the  board  or  boards  that  have  the  ad- 
ministration  over  our  cities,  as  I  should  to  the  legislature, 
which  seems  to  me  to  be  incapable  of  judging  and  as  likely 
to  be  influenced  by  party  considerations  as  the  voters  in  the 
municipalities  themselves.  The  choice  by  town  boards  has 
some  advantages,  only  the  mayor  ought  not  to  be  selected 
from  their  own  number.  And  there  is  great  danger  lest  the 
mayor,  if  so  elected,  should  make  corrupt  bargains  with  those 
who  choose  him.  On  the  whole,  if  the  mayor  is  cx  officio 
to  have  very  considerable  power  of  appointment  or  even  of 
nomination,  and  if  one  of  his  chief  functions  is  to  exercise 
supervision  and  control  over  the  city  councils,  it  would  seem 
best  to  elect  him  in  such  away  that  the  councils  shall  have  no 
control  over  the  election. 

6.  The  choice  of  executive  officers  below  the  mayor  may 
Choice  of  other         made  by  that  officer,  or  by  a  council,  or 
execufve officers.  popular  Suffrage.     ]\Ir.  J.  S.  Mill  (Repres. 

Govt.,  chap.  XV.,  p.  298,  Amer.  ed.)  thinks  that  such  per- 
sons should  be  nominated  and  not  elected.  "  It  is  ridiculous," 
says  he,  "  that  a  surveyor  or  a  health  officer,  or  even  a  col- 
lector of  rates,  should  be  appointed  by  popular  suffrage. 
The  popular  choice  usually  depends  on  interest  with  a  few 
local  leaders,  who,  as  they  are  not  supposed  to  make  the 
appointment,  are  not  responsible  for  it,  or  on  appeal  to  sym- 
pathy. ...  If,  in  cases  of  this  description,  election  by  the 
population  is  a  farce,  appointment  by  the  local  representative 
body  is  little  more  objectionable.  Such  bodies  have  a  per- 
petual tendency  to  become  joint-stock  associations  for  carry- 
ing into  effect  the  private  jobs  of  their  various  members. 
Appointments  should  be  made  on  the  individual  responsibility 

*  I  am  indebted  for  these  particulars  to,  and  sometimes  use  the 
words  of,  the  Hon.  G.  C.  Brodick,  in  Cobdcn  Club  Essays,  u.  s. 


INSTITUTIONS,  LOCAL  AND  SELF  GOVERNMENTS.  383 


of  the  chairman  of  the  body,  let  him  be  called  mayor,  chair- 
man of  the  quarter  sessions,  or  by  whatever  other  title.  He 
occupies  in  the  locality  a  position  analogous  to  that  of  the 
prime  minister  in  the  state,  and  under  a  well  organized  sys- 
tem the  appointment  and  watching  of  the  local  officers  would 
be  the  most  important  part  of  his  duty ;  he  himself  [on  the 
English  plan]  being  appointed  by  the  council  from  its  own 
number,  subject  either  to  annual  re-election  or  to  removal  by 
a  vote  of  the  body."  Agreeing  with  these  views  in  general, 
we  have  only  to  ask  whether  election  by  the  people  ought  to 
create  a  mayor  less  or  more  likely  to  make  faithful  appoint- 
ments than  one  chosen  by  a  council  out  of  their  number. 
As  far  as  I  can  see,  such  a  man  would  make  bargains  with 
his  colleagues  on  condition  of  being  elected,  and  each  of 
these  would  have  his  hangers-on  to  be  provided  with  city 
offices,  while  a  mayor  chosen  by  direct  vote  of  the  commu- 
nity would  be  less  open  to  such  influences.  But  such  direct 
election  is  far  from  being  satisfactory. 

§240. 

7.  The  questions  touching  the  government  of  scattered, 
Government  in  ru-  cspccially  rural  communitics,  are  much  less 
r,i communities.  jifflcult  of  solution  than  those  relating  to  cities 
and  boroughs.  There,  every  man  who  would  be  put  forward 
for  election  as  a  "  selectman  "  or  a  "  supervisor,"  or  on  the 
various  school  or  other  boards,  is  known  through  the  town- 
ship ;  the  duties  are  discharged  for  a  small  salary  or  gratui- 
tously ;  the  spirit  of  the  place  demands  economy  in  all  out- 
lays ;  there  arc  generally  no  large  funds  to  be  kept  or  em- 
bezzled ;  it  is  a  matter  of  prime  interest  that  taxes  shall  be 
brought  down  to  as  low  a  point  as  possible  ;  the  police,  the 
school  arrangements,  provision  for  the  poor,  for  roads  and 
bridges,  are  on  a  settled  system  ;  so  that  the  town  goes  on 
from  year  to  year  with  little  change.  In  consequence  of  this, 
the  habits  of  an  agricultural  town  arc  conservative,  often  to 
an  extreme.  It  ought  to  be  that  such  a  commun'ty  is  far 
more  competent  to  manage  its  affairs  than  a  municipality  is  ; 


384 


POLITICAL  SCIENCE. 


and  it  is  plain  that  self-government  here,  as  an  education  for 
political  duties,  is  of  great  importance,  as  being  the  principal, 
if  not  the  only  accessible  initiation  into  the  mystery  of  self- 
government. 

A  general  law  for  town  administration  is  easier  to  be  framed 
than  for  cities  with  varying  and  vast  interests.  It  seems  to 
be  of  no  very  great  importance  whether  a  mayor  (an  officer 
not  known  in  such  places  on  this  side  of  the  Atlantic,  we 
believe),  or  a  first  selectman,  or  some  other  officer,  shall  be 
at  the  head  of  affairs.  The  officers  of  various  kinds  may  be 
chosen  annually,  or  it  would  be  better  if  a  portion  should 
remain  in  office  and  a  portion  be  removed  annually.  The 
power  to  incur  debts  above  a  certain  percentage  of  the  prop- 
erty might  be  restricted,  as  in  the  case  of  cities.  The  great 
dangers  of  country  towns  in  the  United  States  consist  in  their 
being  remote  from  public  opinion  outside  of  their  own  com- 
munity, from  the  influences  which  help  on  progress,  and  in 
a  certain  powerlessness  against  evils  that  creep  into  their 
territory.  As  a  part  of  the  body  politic  they  are  not  able  to 
find  representatives,  in  all  cases,  who  are  equal  to  the  discharge 
of  necessary  duties  ;  and  their  use  consists  in  opposition  to 
unnecessary  outlays,  rather  than  in  active  promotion  of  the 
public  interests. 

What  has  been  already  said  of  the  officers  of  cities  in  regard 
to  the  evil  of  having  them  appointed  by  the  central  power,  will 
apply  with  more  reason  to  rural  divisions  of  the  country.  In 
the  city  the  mayor  may  prove,  from  his  incompetence  or  cor- 
rupt character,  a  dangerous  man,  if  chosen  on  the  rule  of  uni- 
versal suffrage  ;  in  the  country  town  the  head  men  can  do 
little  harm,  if  so  chosen  ;  while  on  the  other  hand  they  will  be 
mere  tools  of  the  government  if  the  town  has  no  voice  in  their 
election. 

In  the  New  England  colonies  there  was  a  necessity  for  sclf- 
Ncw  England  govcmmcnt,  owing  to  the  circumstances  of  their 
township  system.     f^^^^  plantation  ;  and  their  church  constitution 
led  them  to  free  elections  in  the  community.    It  is  generally 
supposed  also  that  they  carried  with  them,  as  a  legacy  from 


INSTITUTIONS,  LOCAL  AND  SELF  GOVERNMENTS.  385 


Anglo-Saxon  times,  that  system  of  free  self-government  which 
became  obsolete,  or  nearly  so,  not  long  after  the  reformation. 
This  is  probably  true,  for,  although  the  manor  and  its  court 
swallowed  up  the  business  of  the  English  township  in  part, 
still  it  held  its  assemblies  or  gemots,  passed  by-laws,  elected 
certain  officers,  had  certain  police  duties  laid  upon  it,  and 
prepared  the  tithing  lists  for  the  sherift's  inspection.  The 
parish  and  town  being  nearly  confounded  in  the  course  of 
time,  in  the  vestry  meeting,  "  the  freemen  of  the  township, 
the  rate-payers,  still  assemble  for  purposes  of  local  interest 
not  involved  in  the  manorial  jurisdiction  ;  elect  the  parish 
officers — properly,  the  township  officers,  for  there  is  no  pri- 
mary connection  between  the  maintenence  of  roads  and  col- 
lection of  taxes  and  the  parish  as  an  ecclesiastical  unity — 
the  church  wardens,  the  way  wardens,  the  assessors,  and  the 
overseers  of  the  poor."*  It  is  worthy  of  notice  that  under 
the  ecclesiastical  constitution  of  two  of  the  New  England  colo- 

o 

nies  the  parish  and  town  were  one  and  the  same  for  the  most 
part,  that  the  division  of  towns  into  two  parishes  needed  an 
order  of  the  "  general  court,"  and  that  the  church  and  parish 
elected  their  minister  by  concurrent  vote.t 

The  competence  of  the  towns  is  thus  described  in  the  laws 
of  one  of  the  New  England  states.  \  Towns  may  make  such 
regulations  for  their  welfare  not  concerning  matters  of  a  crim- 
inal nature,  nor  repugnant  to  the  laws  of  the  state,  as  they 
deem  expedient,  and  enforce  them  by  penalties  not  exceeding 
five  dollars  for  one  brc^ich.  The  principal  powers  are  those 
of  establishing  poor-houses,  workhouses,  high  schools,  con- 
solidated school  districts,  setting  up  and  maintaining  by  a  tax 
of  fifty  cents  on  every  poll,  public  libraries,  passing  by-laws 
respecting  sidewalks,  catching  birds,  fisheries,  registration  of 
births,  marriages,  and  deaths,  and  making  town  burying- 
grounds.  Their  necessary  duties  are  to  support  free  schools, 
maintain  paupers,  build  and  keep  in  repair  highways,  and  set 

*  Prof.  Stubbs,  Const.  Hist.,  i,  §  43. 
t  See  Jkick,  Kcclcs.  Law  of  Massachusetts,  chapters  1-3. 
i  Laws  of  Connecticut,  revision  of  1874,  t'de  7,  ch.  2. 
VOL.  II. — 25 


386 


POLITICAL  SCIENXE. 


up  sign-posts.    The  leading  town  officers  are  select  men  from 

two  to  seven  in  number,  of  whom  the  person  first  named  on  a 

plurality  of  ballots  is  the  "first  selectman  ;"  with  whom  are 

chosen  constables,  assessors,  a  board  of  relief  to  whom  appeal 

is  made  from  the  assessors'  lists,  a  town  clerk,  a  registrar  of 

births,  etc.,  a  treasurer,  a  collector,  a  surveyor  of  highways, 

and  various  inferior  officers,  as  weighers,  gangers,  having  to 

do  with  police.* 

The  New  York  system  of  supervisors,  which  has  spread 

„       ,  over  several  other  states  that  lie  farther  west- 

New  V  ork  system. 

ward,  gives  much  more  efficiency  to  the  county 
than  is  given  by  the  systems  in  -New  England.  The  towns 
have  their  appropriate  officers,  and  there  are  school  commis- 
sioners in  the  school  districts  under  the  control  of  the  super- 
intendent of  public  instruction.  Among  the  officials  chosen 
by  the  towns  is  a  supervisor,  who  receives  and  pays  over  town 
moneys,  keeps  accounts,  reports  the  town  debt,  and  is 
one  of  the  auditors  of  the  town  treasurer.  The  supervisors 
of  the  county  form  a  board,  which,  by  a  majority  of  the  whole 
number,  exercise  extensive  powers.  Some  of  these  powers 
are  :  to  control  the  corporate  property  of  the  county,  to  exam- 
ine and  settle  its  accounts  and  direct  the  raising  of  money  to 
pay  the  same,  to  repair  county  buildings  and  buy  real  estate 
for  the  sites  of  new  buildings,  to  sell  county  estate,  to  raise  by 
tax  a  sum  not  e.xceeding  five  thousand  dollars  a  year  for 
buildings  which  the  law  permits  them  to  build,  to  borrow 
money  for  the  use  of  the  county,  and  authorize  any  town 
to  borrow  not  more  than  four  thousand  dollars,  to  erect  new 
towns  and  divide  old  ones,  to  make  laws  and  regulations  con- 
cerning wild  beasts,  dogs,  thistles,  etc.,  and  protect  game 
and  fish,  etc.    They  audit  the  accounts  of  superintendents  of 

*  For  a  long  time  city  government  was  unknown  in  New  England. 
Boston  was  governed  by  selectmen  until  1822.  In  Connecticut, 
cities  were  of  somewhat  earlier  date.  But  the  plan  which  e.xists  more 
or  less  of  dividing  up  work  within  certain  limits  between  city  and 
town  officers  is  due  rather  to  the  force  of  habit  and  attachment  to 
what  is  old  than  to  the  intrinsic  advantages  of  such  a  system. 


INSTITUTIONS,  LOCAL  AND  SELF  GOVERNMENTS.  387 


the  poor,  are  charged  with  the  care  of  county  records,  and 
can  legah'ze  acts  of  town  meetings  that  are  informally  called 
together. 

The  townships  and  parishes  of  England  have  by  no  means 
Township  and  par-  ^^at  significance  which  they  might  have  for  the 
bnd%'iviJ!g  way"fo'  wcll-being  of  the  country  population,  and  this 
new  unions.  grows  in  part  out  of  the  decay  of  the  old  yeo- 
manry, and  the  accumulation  of  land  in  a  few  hands.  To  the 
counties  has  always  belonged  the  management  of  bridges ; 
and  the  parishes  formerly  were  obligated  to  repair  all  public 
roads,  bridle-paths,  and  foot-paths.  By  legislation  within 
this  century  the  superintendence  of  highways  is  committed  to 
mixed  boards,  consisting  partly  of  resident  justices  and  partly 
of  way-wardens  elected  by  the  parishes  ;  and  for  this  purpose 
the  counties  were  divided  into  highway  districts.  The  very 
important  office  of  administering  the  poor-laws  is  entrusted  to 
boards  of  guardians,  consisting  in  part  of  owners  of  property 
and  payers  of  rates  in  the  parishes  which  make  up  the  various 
unions.  A  health  act  passed  as  late  as  1872  imposes  the 
obligations  created  by  the  sanitary  act  of  1868  and  others  on 
boards  which,  in  rural  districts,  arc  no  other  than  those  of 
guardians  of  the  poor.  Finally,  the  education  act  of  1870 
gives  an  independence  to  rural  parishes  by  making  each  a 
school  district  "  responsibly  for  all  the  school  accommodation 
of  all  its  children  within  the  school  age.*"  *  Thus,  with  this  ex- 
ception, all  the  late  legislation  of  England  shows  that  the  parish 
or  township  is  of  small  account  in  the  local  administration  ; 
and  this  exception  is  evidently  necessary,  as  children  must  go 
to  school  within  the  parish,  or  not  at  all. 

We  have  seen  that  in  France  the  communes,  whether  great 
Government    of  or  Small,  rural  or  urban — with  two  exceptions 

communes  in  Hcl- 

gium.  — are  governed  on  one  system.     In  Belgium, 

by  laws  of  1836  and  1842,  the  communal  authorities  are  a 
council,  and  a  body  composed  of  a  burgomaster  and  scliepen 
or  echevins  (sheriffs  M.  Laveleye  now  translates  these  ancient 


*  Brodick,  u.  s.,  36-44. 


388 


POLITICAL  SCIENCE. 


words).    The  councils  of  the  communes  vary  in  number  be- 
tween seven  and  twenty-one,  who  have  a  residence  in  the 
territory  of  the  commune  itself,  except  that  in  very  small 
places  a  part  of  the  members  may  be  supplied  from  another 
commune.    They  are  chosen  for  six  years  by  electors  paying 
direct  taxes  to  the  amount  of  at  least  ten  francs.    Half  the 
council  goes  out  every  three  years.    The  echevins  ox schepcn, 
as  well  as  the  burgomaster,  are  named  by  the  king  from 
among  the  councillors,  and  hold  their  offices  for  six  years, 
but  may  be  displaced  or  suspended  by  the  state  authorities. 
The  councils  manage  the  property  and  revenues  of  communes  ; 
regulate  and  pay  their  expenses  ;  see  to  the  police,  especially 
in  regard  to  health  and  public  security;  administer  the  pub- 
lic establishments  of  the  communes,  attend  to  public  works, 
and  lay  local  taxes,  subject,  however,  to  the  royal  approval. 
The  echevins,  who,  with  the  burgomasters  are  salaried  officers, 
take  care  of  the  communal  property  and  the  archives;  make 
known  the  resolutions  of  the  council  and  execute  them  ;  keep 
registers  of  births  and  deaths  ;  attend  to  suits  in  which  the 
commune  is  concerned  ;  and  supervise  the  servants  of  the 
commune,  hospitals,  and  theatres.    The  burgomaster  is  head 
of  the  police  and  administers  local  justice,  subject  of  course 
to  appeal,  i.e.,  he  has  charge  over  breaches  of  the  law  and 
crimes  committed  within  the  limits  of  the  commune.    It  will 
be  seen  from  this  brief  sketch,  which  we  give  on  M.  Laveleye's 
authority,  that  the  state  has  too  great  control  over  the  execu- 
tive officers  of  the  communes.* 

In  Spain  the  municipal  officers  are  alcaldes  or  mayors,  dep- 
Municipaireguia-  "^y  mayors,  in  number  equal  to  the  districts  of 
tions  in  Spain.  ^j.^^  towu,  and  councillors  {conccjalcs).  Certain 
members  who  represent  the  town  at  law  are  called  syndics. 
The  councillors  are  elected,  one-half  of  them  every  two  years, 
in  districts,  and  the  alcalde  is  chosen  by  the  board  of  coun- 
cillors. Their  functions  include  police,  care  of  revenues, 
sanction  of  expenditures,  supervision  of  institutions  of  bcnev- 

*  Laveleye  in  the  Cobdcn  Chib  Essays,  u.  s.,  256-264. 


INSTITUTIONS,  LOCAL  AND  SELF  GOVERNMENTS.  389 


olence  and  education.  They  can  pass  by-laws  and  impose 
fines.  But  the  law  declares  the  municipal  officers  to  be  dele- 
gates of  the  central  government,  and  requires  them  to  aid  the 
officials  of  government  in  the  discharge  of  their  duties,  which 
is  certainly  a  very  dangerous  relation  for  the  freedom  of  the 
towns.  A  singular  appendage  or  check  on  this  town  govern- 
ment is  a  Jujita  municipal,  composed  of  the  councillors  and 
of  citizens  three  times  their  number,  taken  from  the  rate- 
payers, which  was  created  in  1870-71,  and  was  intended  to 
guard  the  wealthy  class  in  the  towns  from  oppression.  The 
local  taxation  is  not  equal  to  the  needs,  and  in  the  late 
troubles  of  Spain  this  has  prevented  the  immediate  sucgess 
of  self-governing  institutions.* 

The  landgemcinde  or  rural  commune,  in  Prussia,  has  prop- 
erly nothing  to  do  with  the  school,  the  church, 

Prussian  system.  _  .      .       ,    ,  . 

or  the  police.  Its  prmcipal  busmess  seems  to 
be  the  care  of  the  poor.  Its  administration  of  affiiirs  is  in  the 
hands  either  of  a  body  elected  by  the  community,  or  of  the 
community  meeting  as  an  assembly.  Its  officers  are  a  schtiltze 
and  two  or  more  sclwffcn,  who  have  police  duties  and  can 
perform  certain  notarial  acts  in  connection  with  a  village 
court.  The  country  communes  were  formerly  connected  in 
great  part  with  an  adjoining  manor  (a  gutsherrschaft),  and 
the  lord  was  responsible  for  the  police.  The  country  com- 
mune, under  the  inspection  of  superior  authorities,  has  the 
power  of  providing  for  its  expenses  by  rates  levied  for  that 
purpose. t  These  are  most  imperfect  and  defective  forms  of 
self-governing  communities.  It  is  to  be  hoped  that  a  wholly 
new  system  will  force  its  way  into  Prussia  ere  long. 

The  Russian  village  community — called  the       — is  a  truly 
Russian  viii.ige   patriarchal  one,  based  on  community  of  land, 
communities.  dcsccnt  from  a  common  ancestor.    In  its 

assemblies,  consisting  of  heads  of  families  (women  included), 
it  decides  upon  redistribution  of  the  common  land,— the  sys- 
tem of  private  landowncrship  being  only  an  exception — divi- 

*  Moret  y  I'rcndcrgast,  in  the  essays  before  cited,  p.  347  and  onw. 
\  Morier,  in  the  essays  above  cited,  pp.  426-430. 


390 


POLITICAL  SCIENCE. 


sion  of  taxes  among  the  members  of  the  mir,  who  are  jointly 
responsible  for  the  debts  of  the  separate  members  ;  granting 
of  passports  to  its  members  ;  discharging  old  members  and 
receiving  new  ones  ;  and  judging  in  small  civil  and  criminal 
cases.  Formerly  recruiting,  or  furnishing  soldiers  to  govern- 
ment, was  also  one  of  the  duties.  The  meetings  of  the 
assembly,  that  is,  of  the  inhabitants,  are  informally  called  by 
the  elder  or  starosta,  as  the  people  are  leaving  church  ;  and 
are  held  frequently  sitb  dio,  and  often  in  the  neighborhood  of 
a  tavern.  When  there  has  been  talk  enough,  the  question  is 
not  put  and  decided  by  a  majority,  but  if  there  appears  to  be 
a  dift'erence  of  opinion  they  adjourn,  and  do  this  more  than 
once,  until  the  minority  withdraw,  or  some  compromise  is 
effected.  When  there  are  candidates  for  some  office,  the 
names  are  talked  over  before  the  meeting  begins  ;  and  when  a 
name  is  mentioned,  the  meeting  shows  its  feeling  in  a  few 
words,  and  a  decision  is  made.  The  community  has  a  good 
deal  of  power  over  its  members,  but  this  is  exercised  rarely 
except  for  the  purpose  of  compelling  them  to  pay  their  share 
of  the  taxes.* 

I  have  said  and  need  say  nothing  respecting  self-governing 
Self-governing  divisions  greater  than  towns,  since  in  the  matter 
powermcount.es."  lo^al  and  self-govemmcnt  they  have  but  a 
subordinate  interest.  The  county  brings  justice  near  to  the 
people,  who  otherwise  would  be  oppressed  by  its  expensive- 
ness  ;  and  it  is  convenient  for  some  purposes  oiiadministration, 
but  is  of  little  use  in  calling  forth  and  keeping  up  the  self- 
governing  capacity  of  the  people.  In  the  southern  states  of 
our  Union  the  system  of  slavery  required  that  plantations 
should  be  larger  than  they  would  be  in  communities  composed 
of  freemen  only,  and  there  was  no  centre  of  population  except 
the  county-scat.  This  prevented  common  schools,  and  ren- 
dered joint  action  difficult  except  for  communities  spread 
over  a  district  of  considerable  size.    In  some  of  these  states, 

*  Ashton  W.  Dilke,  in  Essays,  u.  s.,  314-317.  I  have  in  some 
places  made  use  of  his  words.  Comp.  Laveleye,  de  la  propriete,  chap, 
iii. 


INSTITUTIONS,  LOCAL  AND  SELF  GOVERNMENTS. 


the  division  by  townships  has  been  introduced.  In  one  of 
the  northern  states,  Illinois,  the  southern  portions  have  had  a 
system  of  counties  as  their  units  of  administration,  but  the 
northern  portions  have  townships  for  their  units,  correspond- 
ing to  the  origin  of  the  early  settlers  ;  but  now  the  township 
system  is  invading  the  soil  of  the  other. 

Mr.  J.  S.  Mill  thinks  that  "  the  plan  of  representative  sub- 
parliaments  for  local  affairs,"  in  England,  "  must  henceforth 
be  considered  as  one  of  the  fundamental  institutions  of  free 
government."  If  by  these  words  are  intended  the  boards 
of  guardians  of  the  poor,  of  managers  of  highways,  board^ 
of  health  and  school  committees,  such  institutions  may  be 
very  efficient  means  of  administration,  and  may  call  forth 
great  e.xecutive  vigor  over  a  country.  But  a  despotic  gov- 
ernment might  create  and  sustain  by  law  such  unions,  if 
it  was  enlightened  enough.  I  cannot  see  how  such  neat  and 
efficient  modes  of  local  administration  are  going  to  be  great 
political  blessings.  If  the  land  is  held  by  few  hands,  and  all 
agriculturists  are  tenants  or  hrm  laborers,  they  will  not,  we 
may  assume,  be  members  of  such  sub-parliaments.  The 
hope  of  a  country  depends  mainly  on  small  land-owners.  A 
country  without  these  is  in  danger  of  running  into  practical 
despotism.  Where  the  mass  of  the  people  by  reason  of  their 
poverty  or  exclusion  from  place  of  influence  is  only  passive, 
there  is  little  self-government  or  political  education. 


CHAPTER  XI. 


SUBJECT-MATTER  OF   LAW   AND  ADMINISTRATION. 

§  241. 

In  the  second  part  of  this  treatise  we  arranged  under 
Subjects  here  scvcral  hcads  the  ends  for  which  the  state  is 
treated  of.  nccessary.    The  conclusion  was  reached,  that,  in 

addition  to  the  protection  of  rights  and  obhgations,  the  gene- 
ral defence  against  foreign  foes  and  the  maintenance  of  public 
order,  there  are  certain  departments  of  work  which  the  state 
may  take  upon  itself,  either  exclusively  or  in  concurrence 
with  individuals  or  associations.  These  kinds  of  work  may 
be  neglected  by  the  state  while  yet  it  performs  its  most  im- 
portant functions.  It  may  even  appear  best  that  a  state 
should  have  no  direct  concern  with  one  or  another  of  them, 
but  should  leave  them  to  voluntary  efforts,  only  superintend- 
ing and  controlling  such  efforts,  so  as  to  keep  them  within  the 
limits  of  justice  and  public  benefit.  To  some  of  these  we 
now  invite  the  attention  of  our  readers,  intending  to  make 
but  few  remarks  on  most  of  them,  as  requiring  no  long  expo- 
sition to  disclose  their  relations  to  the  state,  but  only  practical 
rules  which  experience  in  public  business  will  suggest.  Others 
of  them  will  demand  a  more  extended  discussion.  The  sub- 
jects are  safety  against  foreign  foes  and  preservation  of  order 
within  the  state  ;  public  health,  roads,  taxation,  protection 
of  industry,  the  relations  of  the  state  to  education,  to  the 
poor  and  infirm,  to  morals  and  to  religion. 

^  242. 

I.  The  United  States  are  so  remote  from  any  foes  that  can 
Safety  against  for- drcadcd  that  thc  maintenance  of  an  army  is 
eignfocs.  ^  minor  interest.    In  the  late  war  of  secession 


SUBJECT-MATTER  OF  LAW  AND  ADMINISTRATION.  393 


one  of  the  strongest  motives  for  keeping  the  union  entire  was 
the  fear  of  future  wars  with  another  repubHc,  the  fugitives 
from  which  would  be  continually  crossing  our  border,  and 
with  which,  for  various  reasons,  we  could  not  long  expect  to 
be  at  peace.  The  insulation  of  Great  Britain  removes  it  to  a 
distance,  if  not  toto  orbe,  from  the  rest  of  Europe,  and  this 
has  had  a  great  influence  on  her  steady  development.  Most 
of  the  nations  of  Europe  have  been  affected  not  only  in  their 
general  prosperity  but  in  their  forms  and  functions  of  gov- 
ernment, by  the  necessity  of  going  to  war  with  each  other  ; 
and  the  balance  of  power,  so  far  from  provoking  war,  has 
rather  on  the  whole  kept  down  the  aggressive  spirit  and 
saved  smaller  states  from  being  absorbed  in  larger  ones. 
Their  nearness  and  the  suspicions  of  the  designs  of  larger 
states  call  for  large  armies,  large  armies  call  for  increased 
burdens  on  industry,  and  the  increase  of  the  military  force 
of  one  country  calls  for  the  same  increase  in  all  others  which 
are  exposed  to  its  invasions  or  intrigues.  The  war  spirit 
does  not  generally  spring  from  the  people — although  Napo- 
leon's conquests  finally  roused  all  Europe,  rulers  and  people, 
against  the  French — but  from  dynastic  quarrels  and  from 
intrigues.  The  ease  with  which  money  may  be  borrowed  in 
large  sums  in  the  leading  money  markets  adds  to  the  willing- 
ness with  which  nations  go  to  war.  Posterity  must  pay  the 
debt. 

There  is  no  end  to  this  which  is  likely  to  be  accepted  by 
the  civilized  nations  of  the  world,  but  every  step  by  which 
the  tax-payers  gain  political  power  makes  war  more  difficult. 
If  the  power  of  borrowing  could  be  constitutionally  restricted 
and  the  power  of  lending  for  purposes  of  war  be  made  diffi- 
cult, this  would  be  a  blessing  to  the  world.  Ikit  a  still  more 
important  measure  would  it  be,  if  nations  by  treaty  reduced 
their  public  armaments — on  land  at  least,  for  fleets  are  less 
dangerous — according  to  a  uniform  rule.  Perhaps  the  same 
end  may  be  gained  by  a  loss  of  public  credit  amounting  al- 
most to  bankruptcy. 


394 


POLITICAL  SCIENCE. 


§  243. 

II.  A  nation  needs  armed  forces  against  seditions  and  in- 
Safety  and  order  surrcctions,  but  the  qucstion  of  public  order  de- 
within  a  state.  pends  mainly  on  a  well-  devised  system  of  police. 
In  another  place  we  have  restricted  this  term  to  the  English  use 
instead  of  allowing  it  to  embrace  all  that  care  of  the  public 
welfare  which  is  not  included  in  the  military,  financial,  and 
judicial  departments  of  administrative  power.  It  is  with  us 
the  means,  subordinate  to  other  powers,  of  protecting  the 
persons  and  property  of  individuals  against  injury,  especially 
arising  from  evil-doers,  but,  in  part,  from  natural  agents  also  ; 
and  of  detecting  the  authors  of  such  injuries  in  order  to  bring 
them  to  justice.  A  detective  police — it  has  appeared — can- 
not properly  be  separated  from  a  defensive,  for  the  two  func- 
tions, as  they  deal  with  the  same  classes,  and  even  individuals, 
are  best  lodged  in  the  hands  of  the  same  policeman  or  of  men 
belonging  to  the  same  corps.  It  is  idle  to  follow  theory,  and 
say  that  as  one  is  related  to  the  judicial  organs  of  society 
(namely  the  detective)  and  the  other  not,  they  ought  to  be 
committed  to  different  persons.  In  regard  to  the  proper 
constitution  and  connections  of  the  police  of  society,  there  is 
much  about  which  we  feel  that  we  are  at  a  loss.  The  follow- 
ing remarks  may  serve  to  show  the  extent  of  the  police  power, 
the  responsibilities  under  which  it  should  be  exercised,  its 
connections  within  itself,  the  mode  of  its  appointment,  and 
the  divisions  of  which  it  is  susceptible. 

I.  A  question  of  a  preliminary  nature  is  whether  the  care 
of  public  order  and  safety  ought  to  be  made  a  distinct  depart- 
ment from  the  care  of  public  health.  Indeed,  might  not  pub- 
lic charity,  the  care  of  the  poor,  be  confided  to  the  same  great 
board  with  the  two  others  mentioned  ?  There  is  a  reason  for 
separating  public  charity  and  health  from  public  order,  which 
seems  sufficient  in  large  places  to  prevent  their  being  united 
in  one.  The  care  of  health  needs  the  highest  medical  science, 
and  public  charity  is  closely  connected  with  it  ;  for  the  habits 
and  houses  of  the  degraded  poor  arc  sources  of  infection  on 


SUBJECT-MATTER  OF  LAW  AND  ADMINISTRATION. 


395 


which  medical  guardians  ought  ever  to  have  their  eyes. 
Where  the  community  is  small  all  may  be  grouped  together, 
but  in  large  cities  they  can  perhaps  better  act  apart,  and  yet  be 
so  connected  as  to  be  enabled  to  play  into  each  other's  hands. 
I  would  then  have  public  order  entrusted  by  itself  to  a  set  of 
men  who  are  only  prepared  to  put  down  and  resist  force,  or 
to  combat  with  the  destructive  powers  of  nature.  Making 
these  limits,  we  come  to  subdivisions  of  the  police  power 
properly  so  called,  according  as  the  harmful  agencies  to  be 
met  proceed  from  evil  men  or  from  the  element  of  fire.  A 
fire  department  has  a  distinct  work  of  its  own  not  needing  the 
action  of  individual  men,  but  the  combined  strength  and  skill 
of  a  number  engaged  in  the  very  simple  work  of  extinguish- 
ing flames.  A  night  police,  on  the  other  hand,  has  a  num- 
ber of  very  delicate  duties  confided  to  it,  besides  that  of 
giving  the  alarm  when  fires  break  out.  The  men  on  duty 
are  called  to  detain  and  arrest  suspicious  persons,  to  visit 
drinking  and  gambling  houses,  it  may  be,  to  put  a  stop  to 
nocturnal  brawls,  to  repress  noise,  to  take  up  vagrants,  with 
various  other  duties,  some  of  which  require  the  exercise  of 
considerable  firmness  and  discretion.  They  are  often  called 
to  defend  themselves  or  to  attack  a  superior  force  of  vaga- 
bonds. Courage  and  strength  of  resolution  must  be  put  forth, 
if  they  would  act  their  parts  well.  It  is  to  be  regretted  that 
with  such  responsibilities  laid  on  them  they  should  be  held  in 
so  little  esteem.* 

2.  It  has  appeared  that  the  appointment  of  a  police  force,  of 
its  officers  and  men,  as  well  as  of  its  superintendent,  ought  to 
be  removed  as  far  as  possible  from  the  influences  of  political 
parties.  This  is  the  more  necessary  on  account  of  the  rank 
of  life  from  which  the  men  are  taken,  which  allows  of  corrupt 
approaches  on  political  accounts  with  the  view  to  shield  the 
underlings  of  leaders  in  town  politics.  The  best  way  of  ap- 
pointing the  police  is  perhaps  in  large  cities  that  the  mayor  be 
responsible  for  the  composition  of  the  corps  in  a  city,  or  that  a 


*  Comp.  Bluntschli,  Staatsr.,  ii.,  175  ed.  i. 


POLITICAL  SCIENCE. 

board  having  no  connection  with  the  parties  in  the  place  should 
make  the  selections.  It  is  unnecessary  to  say  that  a  police 
in  cities  ought  to  be  under  strict  surveillance  and  liable  to 
speedy  trial,  exposing  them  to  loss  of  place  and  other  penal- 
ties. The  constables  and  other  rural  police  may  be  elected 
by  the  community  with  safety,  for  in  country  townships  the 
character  of  every  one  is  known,  and  the  office,  being  not 
generally  capable  of  furnishing  an  entire  support,  will  be  less 
sought  for  on  party  grounds. 

3.  The  responsibility  of  the  arresting  officer  is  a  principle 
of  law  which  is  essential  to  individual  liberty,  and  yet  the 
most  careful  officer  may  arrest  the  wrong  person  and  do  him 
serious  harm.  In  cases,  therefore,  where  the  officer  is  in  no 
respect  blameworthy  for  the  fact  or  the  manner  of  the  arrest, 
the  society  ought  to  be  responsible,  since  the  evil  is  inciden- 
tal to  a  system  necessary  for  its  security. 

4.  As  we  have  already  remarked,  a  detective  police  ought 
not  to  be  a  body  by  itself,  although  its  functions  are  analogous 
to  those  of  a  court,  while  the  functions  of  other  policemen 
have  more  of  an  administrative  character.  The  most  expe- 
rienced, the  best  acquainted  in  the  corps  with  the  haunts  and 
friends  of  knaves,  will  naturally  be  set  apart  for  this  work. 
It  is  strictly  a  public  duty.  What  right,  then,  has  any  private 
man,  who  has  lost  notes  or  bonds,  to  compound  through  the 
detective  with  the  thief?  Will  not  the  possibility  even  of 
thus  escaping  the  consequences  of  a  crime  by  giving  up  part 
of  the  plunder  tend  to  increase  the  number  of  criminals  ? 
And  will  not  the  detective,  acting  as  an  agent  of  a  private  per- 
son, be  turned  aside  from  his  proper  duty  of  bringing  knaves  to 
justice,  so  as  to  think  mainly  of  the  percentpge  that  will  fall 
to  him  ?  Nay,  may  he  not  be  led  to  help  on  a  crime  by  this 
practice  of  private  persons,  to  instigate  a  rogue  first  and  then 
to  screen  him  afterwards  ?  Where  the  detective  knows  who 
the  culprit  is,  and  will  not  bring  him  to  light  unless  an  advan- 
tageous bargain  is  made  with  the  injured  party,  he  makes 
himself  an  accessory  to  the  crime.  Where  the  injured  party 
is  guilty  of  compounding  of  felony  he  is  punishable  by  Eng- 


SUBJECT-MATTER  OF  LAW  AND  ADMINISTRATION.  39/ 


lish  law  with  fine  and  imprisonment,  and  formerly  was  held  to 
be  an  accessory.  And  by  a  statute  of  the  last  century,  "  to 
advertise  a  reward  for  the  return  of  things  stolen,  with  no 
questions  asked,  or  words  to  the  same  purport,  subjected 
the  advertiser  and  the  printer  to  a  forfeiture  of  50I.  each." 
(Blackst.  iv.,  p.  134.) 

§  244. 

III.  The  care  of  public  health  is  closely  connected  with 
The  care  of  public  P"t)lic  charity  or  the  care  of  the  poor  and  sufifer- 
ing,  and  it  may  need  a  supervision  of  its  own  to 
prevent  the  introduction  of  dangerous  diseases  from  abroad. 
It  is  also  most  closely  connected  with  police  regulations  relating 
to  the  way  of  building  houses,  their  condition  as  to  cleanliness 
and  drainage,  the  removal  of  all  morbific  excrements,  and  the 
supply  of  wholesome  water.  We  shall  consider  only  how  far 
a  sanitary  police  can  be  used  for  curing  or  for  preventing  dis- 
ease. The  need  of  sanitary  law  mainly  touches  compact 
towns.  A  population  scattered  over  farms,  with  wise  pre- 
cautions against  impurities  being  mixed  with  water  or  milk, 
will  need  in  ordinary  times  very  little  supervision,  and  the 
medical  men  of  the  neighborhood,  when  epidemics  invade  a 
rural  district,  are  generally  able  to  give  the  needful  directions 
to  the  people  without  the  assistance  of  officers  of  health. 

We  will  consider  then,  especially,  compact  towns,  and  first, 
as  to  the  public  interference  in  curing  diseases,  which  was 
first  tried  in  very  ancient  times.  Public  physicians  are  men- 
tioned by  Diodorus  of  Sicily  as  being  employed  among  the 
Egyptians.  They  received  a  salary  from  the  public,  and  if 
they  were  unable  to  heal  the  sick  while  following  the  written 
recipes  of  ancient  physicians  were  subject  to  no  charge  ;  but 
if  the  patient  died  when  they  pursued  a  course  aside  from 
these  written  traditions,  they  were  subject  to  capital  trial, 
(i.  ^  82.)  In  parts  of  Greece,  also,  publicly  paid  physicians 
seem  to  have  existed.  (Plat.,  Gorg.,  514  D.)  Ascarlyasthc 
first  age  of  the  Roman  empire  mention  is  made  of  town- 
physicians  in  Marseilles  and  other  towns  in  Gaul.  Antoninus 


398 


POLITICAL  SCIENCE. 


Pius  made  an  ordinance  for  the  province  of  Asia  that  in  every 
town,  a  number  of  physicians,  nominated  by  the  town  author- 
ities and  removable  from  office  by  them,  should  enjoy  immu- 
nity from  all  public  burdens.  These  physicians,  five,  seven, 
or  ten,  according  to  the  size  of  the  place,  received  a  salary 
from  the  town,  but  could  also  enter  into  private  practice. 
Later  still  the  usage  of  appointing  such  town-physicians  be- 
came common  through  the  Roman  empire.  They  formed  an 
07-do  under  which  the  other  physicians  stood  ;  and  when  anew 
member  was  nominated  by  the  town  authorities  an  examina- 
tion by  the  college  of  the  arcliiatri,  if  favorable,  entitled  him 
to  the  first  vacant  place.*  The  same  practice  has  been  fol- 
lowed in  a  number  of  modern  towns  and  countries.  It  seems 
that  a  desire  to  relieve  the  sufferings  of  the  poor,  and  perhaps 
the  prevention  of  the  spread  of  disease  have  been  the  leading 
motives  for  setting  up  the  institution.  In  modern  Christian 
times  hospitals  for  the  sick  poor,  in  part,  if  not  more  effectu- 
ally, supply  the  same  needs,  together  with  visits  of  health  offi- 
cers to  the  houses  of  those  who  apply  for  aid. 

The  great  office  of  modern  sanitary  regulations  is  to  prevent 
the  introduction  and  spread  of  disease.  Here  a  very  wide 
field  is  open,  which  can  be  properly  taken  care  of  by  no  asso- 
ciation of  medical  men  or  of  private  philanthropists,  but  needs 
that  public  authority  should  be  vested  in  some  board  or  com- 
mittee. This  sanitary  police  consists  of  many  parts,  such  as 
a  good  sewerage,  removal  of  garbage,  an  enforced  system  of 
ventilation  in  schools,  united  with  the  proper  system  of  warm- 
ing, the  placing  of  graveyards  outside  the  limits  of  dense 
population,  together  with  all  necessary  precautions  against 
diseases  of  foreign  origin.  A  large  outlay  in  the  first  instance 
is  required  for  these  objects,  but  it  will  be  met  whenever 
judiciously  made  by  a  diminution  of  the  death-rate  and  the 
increase  of  the  tone  of  health  in  the  town  or  city.  Scientific 
and  experienced  medical  men  ought  to  take  the  lead  in  such 
enterprises  and  to  be  clothed  with  all  necessary  authority. 

*  See  more  about  this  usage  in  K.  Sprengel,  Gesch.  d.  Arzeneikunde, 
ii.,  §  io6  and  onw. 


SUBJECT-MATTER  OF  LAW  AND  ADMINISTRATION.  399 


§  245. 

IV.  The  care  of  the  roads,  again,  in  the  rural  districts,  is  not 
very  difficult.    It  is  one  of  the  most  important 

Public  roads.  ,  ,..  r  , 

duties  devolvmg  on  the  authorities  of  the  town- 
ship, and  demands  supervision  whether  yearly  repairs  are  let 
out  by  contract  or  every  one  is  made  responsible  for  the 
ways  along  which  his  own  land  is  situated.  In  cities  there  is 
need  of  much  more  of  system,  as  to  streets,  sidewalks,  and 
the  keeping  of  them  clean  ;  but  there  are  no  questions  of 
difficulty,  so  far  as  I  know,  that  meet  us  at  this  point  except 
that  of  taking  private  property  for  public  improvements  and 
deducting  the  benefit  to  the  proprietor  from  his  damages. 
There  is  however,  in  regard  to  ways  of  communication, 
whether  common  highways,  canals,  or  railroads,  one  very 
important  question — whether  they  may  best  be  constructed 
by  private  enterprise  or  by  public.  To  a  great  extent  pri- 
vate enterprise  has  built  such  works  in  Great  Britain  and  the 
United  States,  owing  in  part  to  the  ease  with  which,  under 
free  governments,  associations  of  capitalists  are  found  and 
can  manage  large  affairs.  In  other  countries  the  same  end  is 
accomplished  by  public  boards  and  outlays.  Nor  are  there 
wanting  instances  of  the  same  construction  of  public  roads 
by  the  state  in  this  country.  In  this  way  was  the  Krie  canal 
undertaken,  when  the  success  of  such  adventures  was  quite 
uncertain,  together  with  some  other  public  works,  some  of 
which  were  unsuccessful  in  bringing  adequate  returns  and 
ended  in  repudiation.  Either  way  of  construction  is  con- 
sistent with  the  theory  of  state  power.  The  state's  right  to 
take  land,  on  paying  a  just  compensation,  is  transferred  in  one 
of  the  cases  to  agents  who  are  authorized  to  do  its  work  in  its- 
stead.  But  they  take  a  risk  upon  them,  and  then  it  is  not 
wrong  that  they  should  have  the  tolls  until  the  state  shall 
choose  to  pay  them  the  value  of  ihcir  enterprise.  As  for 
permanent  possession  of  a  railroad  franchise  by  a  private 
corporation,  there  arc  grave  reasons  for  holding  that  the  state 
should  not  grant  such  a  charter.    For  the  power  of  such  a 


400 


POLITICAL  SCIENCE. 


body  in  the  politics  of  a  country  may  be  very  corrupting, 
and  if  ciot,  it  will  often  seek  for  a  control  over  legislation 
which  ought  never  to  belong  to  managers  of  pecuniary  cor- 
porations. Thus,  when  their  business  is  successful  and  a 
charter  is  asked  of  the  legislature  for  a  new  road  whjch  may 
take  away  from  an  old  one  its  business,  the  managers  of  the 
latter  oppose  it  with  all  their  might,  and  parties  are  formed 
sometimes  with  this  object  principally  in  view.  The  cure  for 
all  this  has  been  sought  in  a  general  railroad  law,  allowing 
capitalists  to  combine  to  construct  new  roads,  not  indeed  in 
the  near  vicinity  of  the  other,  for  that  would  be  wanton 
injury  and  would  mean  only  that  that  the  new  company  was 
to  be  bought  off,  but  in  the  same  general  direction  between 
two  great  depots  of  trade.  Here,  again,  there  is  need  of 
watchfulness  ;  for  the  companies,  without  question,  will  not 
long  run  rival  lines  but  will  make  some  compromise  either 
against  the  interests  of  the  community  or  on  a  fair  basis. 
And  at  this  point  a  new  difficulty  arises,  owing  to  the  fatal 
ease  with  which  new  enterprises  are  started  and  the  jealousy 
with  which  producers  of  heavy  articles  accuse  the  roads  of 
making  extravagant  charges  for  freight.  The  companies  to 
a  considerable  extent  have  a  very  small  amount  of  shares, 
and  being  unknown,  as  well  as  engaged  in  an  enterprise  at- 
tended with  risk,  they  borrow  at  large  rates  of  interest,  pay 
great  sums  to  brokers  to  procure  money  for  them,  pay  con- 
tractors in  bonds  at  a  great  discount,  and  when  the  road  is 
ready  have  an  interest  which  they  can  with  difficulty  meet. 
The  road  may  have  cost  twice  as  much  as  it  would  have  done 
with  proper  management,  and  the  double  rate  of  interest  must 
come  chiefly  out  of  the  freight  on  produce.  The  farmers  com- 
plain ;  laws  are  made  at  their  suggestion  in  regard  to  cost  of 
freight  and  other  things,  which  if  extended  to  other  branches 
of  business  would  involve  them  in  ruin.  Thus  the  misconduct 
of  roads  and  the  folly  of  legislators  tend  to  produce  a  condition 
of  things  most  alarming,  if  not  ruinous,  for  all  business  interests; 
the  only  good  result  being  that  where  such  things  are  allowed, 
no  more  money  can  be  borrowed  for  a  long  time  to  come. 


SUBJECT-MATTER  OF  LAW  AND  ADMINISTRATIOX.  4OI 

Experience  then,  we  may  say,  has  its  stories  to  tell  both  of 
roads  built  by  the  state  mismanaged,  and  of  roads  built  by 
private  corporations  worse  mismanaged.  This  consideration, 
however,  in  a  country  like  ours,  is  in  favor  of  the  construction 
by  private  capital,  that  if  the  state  build  a  road  in  one  part 
of  its  territories,  there  will  be  a  claim  for  another  in  another 
part,  where  it  is  less  needed,  and  so  every  division  of  the 
state  must  have  its  rigJits,  which  must  be  secured  by  combi- 
nation. Thus  a  great  debt  is  accumulated  which  the  state 
cannot  meet,  and  so  the  most  disastrous  of  all  things  to  the 
credit  and  growth  of  the  state,  the  most  dishonorable  takes 
place, — repudiation,  or  state  bankruptcy.  To  prevent  this 
great  evil  there  ought  to  be  a  limitation  of  the  amount  which 
a  state  may  borrow,  or  some  other  efficient  remedy,  if  any  is 
possible.  Were  it  not  for  the  inconsiderate  legislation,  of 
which  we  have  had  examples,  the  construction  by  the  state 
would  seem  to  be  the  better  way ;  but  we  are  obliged  to  de- 
cide that  to  commit  such  works  into  the  hands  of  private 
corporations  is  preferable.  But  there  is  still  a  third  possible 
plan — that  the  United  States  should  build  all  the  roads  which 
can  serve  as  links  of  transportation  from  state  to  state,  and 
cither  lease  them  to  companies  or  manage  them  by  its  own 
officers.  If  this  be  within  the  constitutional  powers  of  the 
general  government  (in  regard  to  which,  as  is  well  known, 
there  has  always  been  a  controversy  between  the  advocates 
of  strict  interpretation,  or  of  state  rights,  and  the  advocates 
of  liberal  construction,  or  of  large  federal  power),  it  is  still 
subject  to  very  serious  objections,  the  greatest  of  which,  in 
our  judgment,  is  the  tendency  to  accumulation  of  power  in 
'congress  and  the  executive,  together  with  the  influences,  often 
of  a  corrupting  nature,  which  attend  on  having  the  whole 
transporting  power  of  the  country  in  the  hands  of  the  gene- 
ral government.  The  best  plan,  then,  with  the  light  of  past 
experience,  seems  to  us  that  of  having  in  each  state  a  general 
railroad  law,  under  the  stringent  rules  of  which  the  roads 
must  be  begun  with  an  outlay  of  paid  capital  and  with  only 
a  limited  power  of  borrowing,  and  be  afterwards  held  to  do 
VOL.  IL — 26 


402 


POLITICAL  SCIENCE. 


their  appropriate  work  in  fidelity  by  the  fear  of  being  brought 
before  the  courts,  of  losing  their  charters,  and  possibly  of 
fine  and  even  confiscation. 


§  246. 

V.  When,  in  the  progress  of  society,  a  people  substitutes 
Taxing  power  of  t^"*^  payment  of  taxes  for  personal  service  in 
the  state.  army  and  elsewhere,  a  double  danger  is  in- 

curred ;  trained  mercenaries  are  supported,  who  have  a  looser 
connection  with  the  nation  than  with  the  government,  and 
the  nation  loses  the  power  of  resistance  to  armed  force,  and 
has  less  sway  by  its  opinion,  over  the  government,  than 
before.  Hence,  as  we  have  seen,  political  rights  have  more 
to  do  with  the  control  of  the  people  over  the  taxes  than  with 
any  other  political  action.  It  is  a  rule  of  safety  and  of  justice, 
that  of  all  powers  the  taxing  power  should  be  kept  closest  in  the 
hands  of  the  people  by  the  constitution.  The  system  of  taxes 
must  neither  favor  nor  oppress  any  class  or  kind  of  industry. 
To  tax  the  fewest  articles  and  the  least  necessary,  especially 
those  which  will  not  be  lessened  in  their  consumption  by  the 
tax  because  they  are  used  by  a  wealthy  i:lass,  Avill  least  inter- 
fere with  the  pursuits  of  industry.  Questions  of  ease  and 
cheapness  of  collection,  and  of  so  taxing  as  to  prevent  and 
even  not  lay  a  snare  for  false  returns,  are  of  extreme  impor- 
tance. Nor  ought  a  people  to  be  deceived  by  any  indirect 
process  in  which  the  expenses  of  the  government  are  defrayed. 
But  the  subject  of  taxation  runs  out  on  its  practical  side  into 
endless  details  ;  one  branch  of  political  econoni}''  is  finance, 
and  on  that  branch  nations  hitherto  have  been  only  ap- 
proaching towards  settled  views.  A  good  system  of  taxes 
founded  on  true  principles  is  economical,  not  only  by  not 
over-burdening  industry,  but  by  allowing  it  to  expand  with- 
out needless  restrictions. 


SUBJECT-MATTER  OF  LAW  AND  ADMINISTRATION.  403 


§  247. 

VI.  So  far  as  the  protection  of  industry  simply  covers  the 
The  protection  of  sccurity  of  the  individual  in  his  property  and  in 
industry.  cxcrcise  of  his  calling,  all  that  is  needed  is 

non-interference  and  the  cheap  execution  of  the  laws.  But 
there  are  many  branches  of  industry  which  employ  the  capi- 
tal of  companies,  and  a  government  is  bound  to  encourage, 
under  proper  limitations,  this  most  efficient  principle  of  asso- 
ciation, which  is  called  by  Prof.  Von  Holtzendorf  "  the  fun- 
damental characteristic  of  modern  society."  *  The  formation 
of  companies  for  all  lawful,  industrial  purposes  ought  to  be 
entirely  free,  under  such  liabilities  of  the  active  members  or 
directors,  and  protection  of  the  passive,  or  simple  sharehold- 
ers, as  are  found  best  for  society  and  for  the  shareholders 
themselves  against  the  directors.  Incorporations  of  this  kind 
ought  to  be  formed  not  in  the  way  of  privilege,  but  by  a  gen- 
eral law.  A  limited  liability  of  the  shareholders  seems  most 
just,  as  many  of  them  cannot  watch  the  conduct  of  the  direc- 
tors, nor  judge  of  their  honesty  and  discretion.  The  directors' 
liability  ought  to  go  much  farther.  Associations  of  workmen, 
co-operative  unions,  need  no  especial  laws  either  for  their 
security  or  encouragement. 

Encouragements  of  the  industry  put  into  the  shape  of  new 
applications  and  combinations  of  mechanical  powers  by  means 
of  patent  laws  have  been  noticed  already.  If  such  new  ideas 
in  material  forms  can  be  property  from  the  beginning,  and  if, 
as  is  admitted  in  all  civilized  countries,  the  idea  itself  is  a  per- 
tinence to  the  individual,  the  question  arises  whether  it  is  not 
property  for  all  time,  and  why  do  patent  laws  limit  the  dura-  ^ 
tion  of  the  right  ?  This  also  has  been  considered,  so  that  here 
it  is  enough  to  say  that  such  a  length  of  years  ought  to  attach 
to  the  protection  afforded  by  government,  as  will  be  enough 
to  allow  a  man  to  reap  an  adequate  gain  for  his  labor  bestowed 
on  the  invention. 


*  Principien  v.  Politik.,  p.  272  (1869), 


404 


POLITICAL  SCIENCE. 


Patent  laws  are  a  necessary  kind  of  monopoly  in  which  the 
government  sanctions  the  sole  right  of  making,  or  of  selling  to 
others  the  right  of  making  certain  things,  over  which  by  natu- 
ral right  he,  as  inventor,  ought  to  have  the  control.  The  rea- 
sons of  justice  and  of  public  policy  here  are  manifest.  Ought 
any  other  monopoly  to  be  allowed  ?  And  here  we  refer  to 
what  is  called  a  protective  tariff,  by  which  it  is  intended  to 
make  certain  articles  produced  in  foreign  countries  so  much 
dearer  than  competing  articles  at  home,  that  they  will  be  ex- 
cluded or  admitted  only  because  a  sufficient  quantity  of  the 
articles  in  question  can  or  cannot  be  furnished  by  domestic 
industry.  We  call  the  employments  cherished  by  protective 
tariffs  monopolies,  since  if  the  tariff  does  its  wofk  to  the 
extent  of  the  home  supply,  the  people  of  the  country  are 
forced  to  use  these  articles  because  others  are  made  more  dear. 
And  as  articles  of  prime  importance,  as  stuffs  for  wear,  iron, 
coal,  and  the  like,  will  naturally  be  protected,  such  laws  have 
very  serious  consequences  in  the  way  of  a  tax  on  all  other 
industries,  and  on  persons  consuming  the  protected  articles. 
I  shall  not  enter  here  into  the  argument  on  a  protective  tar- 
iff, as  distinguished  from  a  revenue  tariff.  Happily,  all 
writers  of  credit,  with  scarcely  an  exception,  are  agreed  that 
they  are  built  on  a  false  policy.  I  will  only  say  that  they 
involve  the  tyranny  of  preventing  the  producer  from  sending 
his  wares  to  the  best  market,  that  they  make  it  necessary  in 
the  end  to  protect  raw  material,  as  well  as  the  products  for 
which  they  are  needed,  and  thus  partially  defeat  their  own 
ends  by  increasing  the  price  of  the  former  ;  that  they  lead  to 
endless  bargains  and  sectional  disagreements  in  a  country 
where  raw  materials  are  the  chief  products ;  that  they  draw 
away  a  nation's  energies  from  that  which  it  can  raise  to  the 
best  advantage,  and  even  lay  a  tax  on  such  products  ;  and 
that  by  lessening  in  these  ways  the  amount  of  accumulated 
capital,  they  retard  the  growth  of  a  country  and  the  success- 
ful prosecution  of  many  branches  of  industry. 


SUBJECT-MATTER  OF  LAW  AND  ADMINISTRATION.  405 


§248. 

VII,  It  has,  we  trust,  been  made  to  appear:  (l)  that  no 
Eeia.io„ofstateto  parcnt  has  a  right  to  withhold  an  education  from 
education.  child,  if  it  bc  within  his  reach  ;  (2)  that  a  com- 

munity has  a  right  to  make  compulsory  the  education  of  all 
the  children  within  its  territory  ;  (3)  that  thus  it  becomes  a 
duty,  or  at  least  may  be  a  duty  of  a  state  to  establish  a  pub- 
lic system  of  education  ;  (4)  that  the  right  of  free  teaching 
ought  not  to  be  invaded  by  any  state  laws  or  any  system  of 
state  teaching.* 

There  are  some  points  of  difficulty  connected  with  the  rela- 
tions of  the  state  to  education,  which  we  shall  consider  for- 
mally in  order. 

1.  How  much  education  must  bc  supplied  by  the  state  to 
the  children  within  its  borders  ?  We  answer  by  saying  that 
the  children  should  be  compelled  to  learn  so  much  that  they 
may  be  able  in  after-life,  by  exercising  themselves  in  what 
they  learn,  to  receive  knowledge  through  books,  to  commu- 
nicate with  others  at  a  distance  by  pen  and  paper,  and  to 
keep  accounts.  Beyond  this,  which  all  ought  to  know,  and 
which  ought  to  be  essential  for  being  admitted  to  the  right  of 
suffrage,  the  state  may  not  be  obliged  to  go. 

2.  Should  universities,  high-schools,  and  grammar-schools 
be  founded  by  the  state  ?  The  stress  of  this  question  lies  on 
the  universities,  for  the  preparatory  places  of  training,  when 
once  there  is  a  demand  for  them  growing  out  of  the  desire  of 
acquiring  the  highest  forms  of  knowledge,  can  easily  be  fur- 
nished by  towns  or  private  persons  ;  and  such  endowments 
are  favorite  ways,  for  inhabitants  of  the  towns,  of  showing 
their  attachment  to  the  place  of  their  birth  or  their  residence. 
With  regard  to  the  universities — by  which  wc  mean  institu- 
tions where  all  kinds  of  learning  arc  taught,  and  which  form 
corporate  bodies  with  power  to  regulate  the  admission,  the 


*  .Some  of  the  points  here  discussed  arc  briefly  spoken  of  in  §§  78, 
79. 


4o6 


POLITICAL  SCIENCE. 


course  and  incitement  to  study — the  first  point  worthy  of  no- 
tice is  the  different  position  which  they  occupy  in  different 
lands.  In  Great  Britain,  to  a  large  extent,  they  are  truly 
self-subsistent  institutions  over  which  the  government  exer- 
cises little  control,  except  by  its  power  of  visiting  all  the  in- 
stitutions of  the  country.  In  Germany  the  government 
creates  the  university — as  that  of  Halle  was  created  in  the 
last  century,  and  those  of  Berlin  and  Strasburg  in  the  present, 
— appoints  and  pays  the  professors,  and  makes  or  gives 
to  councils  or  to  faculties  the  right  of  making,  subject  to  con- 
trol, all  necessary  laws.  But  this  is  peculiar  in  Germany, 
that  the  liberty  of  teaching  has  long  been  in  the  hands  of  the 
professors  by  a  kind  of  common  law,  so  that  there  is  almost 
entire  freedom  of  propagating  from  the  professors'  cathedra 
any  opinions,  however  strange  or  bold,  which  do  not  endan- 
ger the  state  itself.  Only  now  and  then  in  the  department 
of  theology  are  enormously  unchristian  opinions  uttered  by  a 
professor  of  Christian  theology,  followed  by  his  deposition. 
In  France  the  same  connection  of  the  teaching  body  with  the 
state  subsists,  but  with  less  freedom  of  teaching  on  the  pro- 
fessors' part  than  in  Germany,  and  recently  with  the  permis- 
sion to  found  free  universities  not  subject  to  the  state's  con- 
trol, where  the  state  does  not  appoint  the  teachers  nor 
contribute  to  their  support.  In  the  United  States  there  are 
few  institutions  which  can  be  called  universities  in  any  sense. 
The  system  of  education  began  with  erecting  schools,  answer- 
ing to  the  English  college  within  the  university,  which,  after 
the  invention  of  printing,  and  more  after  the  reformation, 
almost  paralyzed  the  functions  of  the  university  proper.  Add 
to  this  that  some  of  the  sciences,  formerly  conr^idered  to  be  a 
part  of  university  teaching,  migrated  to  large  cities  from  some 
of  the  seats  of  learning,  as  was  the  case  with  law  and  medicine, 
which  throve  better  at  London  than  at  Oxford  and  Cam- 
bridge, on  account  of  the  superior  advantage  of  pursuing  them 
in  the  larger  town.  But  the  colleges  in  this  country,  founded 
after  the  colleges  there,  by  and  by  extended  their  course  ; 
new  departments  in  medicine,  law,  theology,  and  even  art, 


SUBJECT-MATTER  OF  LAW  AND  ADMINISTRATION.  407 


were  engrafted  on  the  old  stock,  so  that  they  are  universities 
and  something  more.  These  were  followed  by  public  univer- 
sities in  a  number  of  states,  most  of  which,  while  possessed 
of  at  least  three  faculties,  have  never,  we  believe,  given  in- 
struction in  theology.  And  this  reveals  the  inevitable  diffi- 
culty of  state  universities  in  a  country  where  there  are  a  num- 
ber of  Christian  denominations  with  equal  rights.  No  one  of 
them  will  consent  that  another  shall  occupy  the  chairs  of  the- 
ology at  the  centre  of  learning,  so  that  either  there  must  be 
nothing  taught  in  this  science,  or  any  denomination  may  be 
allowed  to  establish  its  school  under  the  wing  of  the  university, 
or  the  sects  will  prefer  to  endow  and  control  their  own  schools. 
This  last  plan  has  been  almost  everywhere  adopted  in  this 
country  ;  but  with  some  advantages  it  involves  this  evil,  that 
a  single  department  by  itself,  whether  law,  medicine,  or  phil- 
osophical science  or  theology,  is  in  danger  of  becoming 
narrow,  and  of  aiming  at  merely  professional  results.  There 
is  danger  that  the  evil  will  act  on  the  teachers  and  on  the 
students,  leading  them  to  undervalue  all  branches  outside  of 
their  own,  and  giving  them  within  their  own  departments  a 
shallow,  conceited  spirit. 

But  besides  this  unwillingness  of  the  denominations  that 
one  should  have  advantages  from  the  state  which  all  cannot 
enjoy,  the  trenchant  principle  of  entire  separation  between 
church  and  state  will  involve  a  divorce  between  the  state  and 
theological  science,  for  the  science  itself  will  have  closer  con- 
nections with  one  church  than  with  another.  In  fact,  that 
science,  on  its  historical  side,  must  include  the  examination 
into  the  nature  of  the  Christian  church,  its  organization,  the 
rights  of  the  laity,  and  kindred  questions.  We  can  hardly 
conceive,  then,  that  a  complete  university  can  exist  under 
state  patronage  in  the  United  States. 

But,  still  further,  how  can  history  or  ethics  be  taught  in  a 
university  unless  the  professor  expresses  himself  on  great 
events  like  the  reformation  or  the  papacy  of  the  middle  ages, 
which  have  to  do  with  the  progress  of  mankind.  Here,  if 
all  Protestants  nearly  are  agreed,  Catholics  will  differ  from 


4o8 


POLITICAL  SCIENCE. 


them  entirely,  and  may  justly  urge  that  their  opinions  are 
attacked  without  their  having  an  opportunity  to  defend  them. 
Thus  history  cannot  be  taught,  or  must  be  taught  by  rival 
professors,  media;valists,  and  men  with  a  modern  spirit. 
Again,  although  it  would  naturally  be  thought  at  first  that 
mental  and  moral  philosophy  are  a  field  where  all  theists  can 
meet  together,  this  is  not  found  to  be  the  case,  and  especially 
in  ethics  will  the  freedom  and  responsibility  of  the  individual 
man  be  subjects  of  conflict  among  Catholics  and  Protes- 
tants. Even  in  Great  Britain  it  was  thought  necessary  in  the 
Dublin  University  bill  of  1873  to  exclude  the  teaching  not 
only  of  theology,  but  that  also  of  morals  and  metaphysics,  as 
a  necessary  part  of  instruction.  The  reason  for  this  may 
have  been  the  desire  to  avoid  the  suspicion  that  the  Catholics 
would  get  hold  of  these  chairs  ;  but  whether  it  were  this  or 
the  desire  to  conciliate  Catholics  towards  the  project,  here 
we  see  one  of  the  most  enlightened  men  of  the  age  consent- 
ing to  urge  through  parliament  a  mutilated  university,  one 
that  belied  its  name,  and  this,  we  suppose,  because  he  thought 
no  other  plan  feasible.  History  with  even  greater  reason 
should  be  excluded,  for  who  could  calculate  the  power  of  a 
man  like  Ranke,  to  spread  convictions  which  he  could  not  but 
utter,  touching  the  very  essence  of  Catholicism  as  tested  by 
history  ? 

But  we  may  go  farther  and  say  that  the  natural  sciences  by 
he  same  logic  of  sects  must  be  excluded  from  a  state  uni- 
versity course  in  this  country.  What  right  has  the  state  to 
permit  a  man  to  teach  a  doctrine  of  the  earth  or  the  solar 
system  which  rests  on  atheism,  if  theism  and  revelation  must 
be  banished  from  the  scholastic  halls.  Why  permit  evolution 
to  be  publicly  professed  more  than  predestination  ?  Thus, 
when  the  denominations  become  fully  aware  of  the  principles 
involved  in  modern  science,  they  will  not  fail  to  complain  of 
the  state  as  taking  sides  against  religion,  and  will  not  fail  to 
aim  their  blows  against  the  university. 

Hence  it  would  seem  that  there  is  an  insuperable  difficulty 
in  the  way  of  such  state  institutions,  which  no  time,  no  com- 


SUBJECT-MATTER  OF  LAW  AND  ADMINISTRATION.  409 


promises  can  remove.  But  the  practical  difficulties  are 
equally  great.  They  arise  from  the  causes  which  tend  to 
disturb  the  stability  of  state  institutions  of  higher  learning 
— causes  from  which  state  prisons  or  deaf  and  dumb  asylums 
are  safe,  such  as  the  perverse  notions  of  men  of  crochets, 
the  misplaced  economy  of  legislators  and  the  intrigues  of 
parties.  But  the  directors  of  higher  institutions  of  learning 
to  a  degree  change  with  the  changes  of  politics.  Some  pro- 
fessor has  given  offence  by  his  freedom  in  expressing  his 
opinions  on  public  measures,  and  is  made  an  object  of  attack. 
Some  politician  thinks  that  learned  education  ought  to  pay 
for  itself  without  receiving  aid  from  the  public.  There  is  no 
certainty  that  the  university  will  survive  a  half-century.  The 
medical  faculties  are  convulsed  by  having  a  homoeopathic 
professor  forced  upon  them  by  the  legislature.  Next  there 
is  an  attempt  to  open  the  course  to  women  as  well  as  men. 
Then  the  legislature  refuses  to  make  appropriations  for  the 
most  necessary  apparatus.  Then  the  colleges  in  the  state 
complain,  it  may  be,  that  the  low  price  of  education  at  the 
university  is  driving  them  out  of  the  field.  These  difficulties 
would  be  felt  anywhere,  and  not  least  if  the  national  legislature 
undertook  to  create  a  great  university  at  the  seat  of  govern- 
ment. 

From  all  this  it  would  appear  that  universities  supported 
by  the  state  cannot  have  complete  faculties,  nor  be  sure  of  a 
healthy,  undisturbed  existence.  On  the  other  hand,  universi- 
ties and  colleges  under  the  management  of  persons  acting 
under  a  private  charter  cannot  onl)'  be  provided  with  all  the 
faculties,  but  are  free  from  the  instabilities  to  which  state  insti- 
tutions are  generally  subject.  If  they  are  controlled  by  boards 
consisting  in  whole  or  in  part  of  men  belonging  to  a  Christian 
denomination,  it  is  for  the  interest  of  all  that  the  religious 
views  of  students  and  of  their  parents  should  be  respected, 
nor  can  there  be  found  throughout  the  United  States,  as  I 
believe,  any  place  of  higher  learning  where  a  proselyting  spirit 
animates  teachers  or  guardians.  These  colleges  arc  indeed 
far  too  numerous  ;  they  are  poorly  endowed  for  the  most  part 


410 


POLITICAL  SCIENXE. 


and  no'  always  well  manned  ;  but  it  must  be  remembered 
that  there  had  been  little  demand  for  the  highest  education 
in  this  country  ;  that  the  principal  places  of  learning  are 
ahead  of  the  demand  ;  that  the  probabilities  that  a  number  of 
these  will  expand  into  institutions  teaching  the  whole  circle 
of  the  sciences  is  great,  if  we  may  judge  from  the  past ; 
and  that  endowments  are  full  as  likely  to  come  to  them  from 
private  munificence,  as  that  state  institutions  will  have  per- 
manence and  success.  Above  all,  at  such  places  only  can  it 
be  in  the  teacher's  power  to  cultivate  the  moral  and  religious 
sentiments  of  the  scholars, — there  alone  the  fatal  divorce  of 
religion  from  learning  and  science  can  find  no  place. 

3.  The  state  may,  however,  without  any  especial  difficulties 
set  up  schools  of  technology,  and  of  all  branches  of  special 
education  outside  of  the  learned  professions.  Is  there  any 
obstacle  in  the  way  of  its  establishing  schools  of  the  fine  arts 
also  ?  None  that  I  can  see,  if  the  great  outlays  for  museums 
and  libraries  are  within  its  reach.  Yet  it  may  be  doubted 
whether  the  teachers  themselves  ought  not  to  have  ample 
freedom,  a  freedom  which  would  be  scarcely  compatible  with 
state  control. 

4.  We  now  return  to  the  common  school  system  in  order 
to  discuss  some  questions  of  organization,  management,  and 
instruction  in  which  the  relations  of  the  state  and  the  town 
or  district  are  involved.  If  there  is  to  be  a  school  system  it 
must  proceed  from  and  be  supervised  by  the  state,  and  yet 
there  ought  to  be  powers  given  to  the  towns  to  enlarge  and 
improve  its  schools  without  asking  leave  of  the  legislature. 
In  such  a  case  it  ought  to  be  required  that  the  town  should 
contribute  by  tax  an  amount  equal  to  all  improvements, 
whether  they  consist  of  buildings,  apparatus,  or  new  studies. 
As  for  the  management  of  the  schools,  men  of  the  highest 
qualifications  ought  to  be  appointed,  with  the  duty  of  exam- 
ining as  well  the  schools  as  the  proceedings  of  towns  and 
school  committees,  and  with  certain  discretionary  powers. 
Districts,  for  instance,  may  well  be  forced  to  provide  better 
school-buildings  than  those  that  deface  some  country  towns 


SUBJECT-MATTER  OF  LAW  AXD  ADMINISTRATION.  41I 


on  pain  of  losing  their  share  of  the  public  school  money. 
The  appointment  of  teachers  ought  to  proceed  from  the 
school  committee  of  the  district,  with  some  control  over  their 
doings  by  the  superintendent.  The  dismissal  of  the  teacher 
for  incompetence  or  misconduct  should  rest  on  the  same 
qualified  decisions  of  the  committees.  The  instruction  should 
be  so  far  fixed  that  no  deviations  ought  to  be  allowed  with- 
out the  superintendent's  permission.  Discipline  must  be 
committed  to  the  teacher  within  the  limits  of  a  general  law. 

An  irritating  question  has  arisen  in  recent  times  touching 
the  reading  of  the  Bible  in  common  schools.  It  amounts  to 
this,  on  the  negative  side,  when  unbelievers  in  the  Bible  ad- 
vocate it,  that  religion  ought  to  be  as  much  kept  out  of  the 
school  as  the  church  ought  to  be  kept  separate  from  the  state. 
When  Catholics  take  this  side  they  complain  that  a  Protestant 
version  is  forced  on  the  children  belonging  to  their  confession. 
But  they  go  farther,  also,  than  this  :  they  fear  the  perverting 
influence  of  association  with  Protestant  children  upon  their 
boys  and  girls,  and  would  be  glad  to  have  the  sum  paid  for  the 
education  of  their  number  of  children  by  the  state  devoted  to 
schools  in  which  teachers  and  all  arrangements  should  be 
under  Catholic  control.  And  the  reason  for  this  lies  not  only 
in  the  fear  of  evil  communications,  but  also  in  the  principle 
which,  in  itself,  is  greatly  to  their  honor,  that  religion  being 
of  prime  importance  to  man,  they  want  an  education  for  their 
children  which  can  be  not  secular  only,  but  religious,  in  their 
sense  of  the  word.  It  is  no  answer  to  their  claims  to  say  that 
in  other  cases  where  parents  do  not  like  the  school  system 
they  send  their  children  to  private  schools,  for  the  ready  an- 
swer is  that  the  children  of  their  body  belong  mostly  to  parents 
in  humble  life,  who  must  make  use  of  free  schools  or  of  none 
at  all.  But  the  last  alternative  is  impossible  where  education 
is  compulsory.  Nor,  if  Protestants  shouKl  say  that  they  form 
a  small  minority  and  ought  to  abide  by  the  opinion  of  the 
great  part,  would  that  be  a  fair  view  of  their  case.  It  is  with 
them  a  matter  of  conscience,  and  the  state  respects  the  de- 
mands of  conscience  until   they  become   absurd.  What 


412 


POLITICAL  SCIENCE. 


absurdity  is  there  in  wishing  to  have  children  of  a  particular 
class  taught  within  the  denomination  ?  It  is  true  also  that 
they  pay  less  in  taxes  by  far  than  the  ratio  of  their  numbers 
would  require  ;  but  for  the  state  the  children  are  a  body,  they 
are  counted  and  schooled  as  so  many  polls.  If  there  were  no 
compulsory  education,  as  there  is  not  in  many  states,  one  an- 
swer would  be,  "  keep  your  children  away;  "  but  it  is  not  an 
answer  in  the  interests  of  the  state's  order  and  safety,  nor  in 
that  of  sectarian  kindness  and  peace. 

In  many  cases  where  the  Catholics  are  so  few  that  no  sepa- 
rate school  could  be  supported,  there  will  be  little  trouble  met 
with  from  this  "  Bible  question."  If  in  others  the  number  of 
complainers  is  great,  I  would  without  hesitation  advise  the 
giving  up  of  the  Scriptures  as  a  reading  book  for  the  sake  of 
peace,  and  the  more  readily  because  it  will  always  be  read  in 
a  perfunctory,  unintelligent  way.  But  further  than  this  we 
ought  not  to  go.  The  state  ought  to  do  nothing  to  break  up 
the  communities  into  factions  with  different  educations  ;  its 
object  is  to  produce  a  unity  and  common  feeling  everywhere. 
If  separate  schools  were  allowed  for  the  Catholics,  Protestant 
sects  would  follow,  and  thus  we  should  have  strictly  sectarian 
education,  the  evils  of  which  would  spread  far  and  wide  over 
society.  If,  again,  the  Catholics  would  be  content  with  hav- 
ing their  children  allowed  to  be  absent  from  reading  of  the 
Bible  or  from  school  prayers  ;  or  if  their  priests  should  wish 
to  have  a  time  given  during  the  week,  at  the  school,  for  reli- 
gious instruction,  I  do  not  see  how  any  serious  objection  could 
be  offered.  In  regard  to  the  main  question  it  seems  certain 
that  neither  sectarian  schools  will  be  paid  for  by  the  money 
of  the  state,  nor  that  the  system  of  common  schools  will  be 
given  up. 

There  is  a  subject  of  great  practical  importance  connected 
Moral    training,  witli  cducation  by  the  state,  on  which  a  few  re- 

Can  the  state  under-  ... 

take  it?  marks  may  find  a  place  here  without  bemg  map- 

posite.  Of  what  use  to  the  state  is  the  education  of  the  chil- 
dren, when  it  only  aids  in  opening  the  mind,  without  giving 
any  moral  principles  to  the  pupil  whatever  ?    No  small  part 


SUBJECT-MATTER  OF  LAW  AND  ADMINISTRATION.  413 


of  the  children  brought  up  at  common  schools  bring  no  moral 
training  whatever  from  their  homes,  and  as  to  religion,  their 
minds  are  mere  7-asce  tabulce.  How  far  can  or  ought  the 
teachers  in  schools  to  apply  a  remedy  to  this  evil  ?  The  duty 
of  the  state  seems  to  be  clear  in  regard  to  all  those  branches 
of  morality  that  have  to  do  with  its  highest  interests,  such  as 
honesty,  chastity,  temperance,  truth,  and  the  evil  of  revenge, 
as  well  as  in  regard  to  the  inculcation  o{ political  duties,  such 
as  obedience  to  law,  respect  to  the  rights  of  others,  love  of 
country.  Where  are  the  voters  under  our  system  of  free  suf- 
frage to  learn  their  duties  in  that  capacity,  unless  from  the 
churches  where  many  of  them  are  never  seen,  or  in  the  school  ? 
The  state  of  Massachusetts,  in  one  of  its  constitutions,  declares 
it  to  be  the  duty  of  teachers  of  schools  to  impress  on  the  minds 
of  youth  "  the  principles  of  piety  and  justice,  and  a  sacred 
regard  for  truth  ;  love  of  their  country  ;  humanity  and  uni- 
versal benevolence  ;  chastity,  moderation,  and  temperance, 
and  those  other  virtues  which  are  the  ornament  of  human  so- 
ciety and  the  basis  upon  which  a  republican  constitution  is 
founded."  "  Moreover,"  it  is  added,  "it  shall  be  the  duty 
of  such  instructors  to  endeavor  to  lead  their  pupils,  as  their 
ages  and  capacities  shall  admit,  into  a  clear  understanding  of 
the  tendency  of  the  above-mentioned  virtues  to  preserve  and 
secure  the  blessings  of  liberty,  as  well  as  to  promote  their 
future  happiness ;  and  also  to  point  out  to  them  the  evil  ten- 
dency of  the  opposite  vices." 

All  this  is  very  good,  but  if  the  teacher  of  the  common 
school  is  to  give  instructions  in  morality,  so  far  as  it  relates 
to  the  well-being  of  society  and  the  state,  he  must  be  in- 
structed himself  in  his  duties  and  in  the  subject-matter  of 
them.  Books  on  morals  level  to  the  capacity  of  children 
must  be  provided,  in  which  at  least  the  leading  duties  towards 
the  state  will  be  inculcated.  But  is  there  any  possibility  of 
stopping  here,  and  if  there  could  be.  would  the  prudential 
morality  of  such  maxims  as  "  Honesty  is  the  best  policy  "  do 
much  good  to  a  child  who  finds  that  he  can  cover  uj)  a  mis- 
deed by  a  lie,  who  has  no  far-reaching  insight  into  the  results 


414 


POLITICAL  SCIENCE. 


of  things  and  the  final  issues  of  conduct?  The  ancients  in 
their  best  systems  of  education  did  far  better  service  to  chil- 
dren's natures,  considering  what  they  knew  and  what  they  did 
not  know,  than  we  do  under  the  modern  dispensation.  They 
aimed  by  a  public  training  of  children  to  improve  the  habits 
and  character,  to  make  the  young  obedient  to  the  law  and 
good  citizens  when  they  should  grow  up,  and  they  called  in 
religion,  which,  poor  as  it  was,  added  its  sanctions  to  moral- 
ity. In  the  middle  ages,  the  instruction  of  the  young  was 
mainly  in  the  hands  of  ecclesiastics  and  had  too  exclusively 
religious  a  cast.  In  modern  times  this  is  passing  away.  The 
extreme  is  reached  among  us  where  religion  is  full  of  benevo- 
lent helpfulness  within  its  own  sphere,  but  a  definite  line  pre- 
vents it  from  invading  the  sphere  of  state  education.  We 
have  not  yet  quite  reached  the  extreme  that  the  teacher  must 
never  mention  God  to  children's  ears,  but  it  must  logically 
come,  if  modern  unbelief  is  to  have  the  career  that  many  look 
for.  Shall  it  come  to  this  that  not  even  the  existence  of  the 
Supreme  One  is  to  be  assumed  in  the  schools,  nor  any  book 
introduced  which  expresses  any  definite  faith  in  regard  to 
providence  and  final  causes  ?  Or,  if  this  should  be  the  course 
of  opinion  growing  out  of  the  doctrine  of  personal  and  family 
rights,  will  not  one  of  two  things  happen — that  all  the  churches 
will  become  dissafifected  towards  the  common  schools  as  the 
Catholics  now  are,  and  provide  teaching  for  themselves,  while 
the  schools  will  be  left  to  the  fax  infima  poptili  ;  or  that  some 
kind  of  compromise  will  be  made  between  the  sects  and  the 
state,  such  as  all  of  them  with  one  exception  would  now  dis- 
approve. 

§  249. 

VIII.  Wc  have  seen  that  no  man  has  a  right  to  be  supported 
by  the  state,  or  even  the  right  to  be  supplied 

Public  charity.  ,  ,  ,       ,  ,       ,  ,  r  ■  ^-  ■ 

With  work  ;  but  the  benevolence  of  Christianity 
and  the  sympathies  of  man  for  his  brother  man  will  not  allow 
the  rule  of  strict  justice  to  govern  in  society.  Private  com- 
passion towards  the  poor,  the  stranger,  the  exile,  is  natural 


SUBJECT-MATTER  OF  LAW  AND  ADMINISTRATION.  415 


all  over  the  world.  In  the  Hebrew  law,  humanity  breathes 
forth  continually,  but  scarcely  goes  beyond  moral  precepts, 
such  as  that  of  giving  back  a  pledged  garment  (Deut. ,  xxiv., 
G),  or  making  it  unlawful  to  take  a  widow's  raiment  in  pledge 
(ib.,  v.  17),  or  allowing  the  poor  to  glean  after  reapers,  and 
in  the  corners  of  fields  (Conip.  Saalschiitz,  Mos.  Recht., 
chap.  33).  The  Athenians,  a  humane  people  owing  to  their 
equality,  Avent  farther  in  the  one  point  of  aiding  the  poor  by 
law.  Among  them,  and  nowhere  else  in  Greece  as  far  as  is 
known,  was  there  public  provision  for  the  infirm  poor,  which 
is  said  to  date  back  as  far  as  to  Fisistratus  or  Solon,  and  to 
have  been  confined  to  such  as  had  been  rendered  unable  to 
work  by  accidents  in  w'ar.  Afterwards  the  dole,  which  never 
rose  above  two  obols  nor  fell  below  one,  was  granted  to  all 
poor  persons  incapable  of  work  who  were  worth  less  than 
three  mince  (nearly  sixty  dollars),  and  were  allowed  by  vote 
of  the  people  after  examination  to  be  placed  on  the  list.  Thus 
they  received  less  than  those  poor  men  who  sat  in  the  assem- 
blies and  the  dicasteries.  Boeckh  and  Schoemann  estimate 
the  whole  annual  expense  of  the  city  on  this  account  at  from 
five  to  ten  talents.*  Besides  this  there  were  clubs  at  Athens 
(epavoC),  for  common  purposes,  religious  or  social,  or  for  mu- 
tual support.  At  Rome  there  seem  to  have  been  no  institu- 
tions of  charity,  but  from  the  time  of  C.  Gracchus  onward 
grain  was  bought  up  and  sold  at  a  low  cost  to  the  poor  of  the 
city,  until  almost  one-fifth  of  the  revenue  is  said  to  have  been 
used  for  this  purpose,  t  The  law  of  C.  Gracchus  was  not  dicta- 
ted by  humanity  so  much  as  by  demagogy  ;  it  gave  the  right 
to  the  Roman  citizens  of  living  at  the  expense  of  the  state, 
by  allowing  them  to  buy  a  certain  number  of  Roman  modii  of 
grain  for  about  half  price.    The  effect  of  this  was  to  depress 

*  See  Schoemann,  Gr.  Alt.,  i.,  442,  and  lloeckh,  Staatshaiish. 
d.  Ath.,  H.  ii.,  §  17. 

t  Cic.  pro  Sestio,  xxv.,  55.  Conip.  the  note  of  Halm.  AVliat 
Cicero  says  seems  to  amount  to  tliis  :  that  almost  a  fifth  part  of 
the  revenues  was  used  uji'in  the  remission  of  asses  on  every 
modiiis  of  wlicat  sold  by  the  public.  This  lowered  prices,  as  they 
then  were,  nearly  one-half.    See  also  Lanjje,  Rom.  Alt.,  ii.,  §  138. 


4l6  POLITICAL  SCIENCE, 

the  cultivation  of  grain  in  Italy,  as  well  as  to  degrade  and 
increase  in  number  the  Roman  proletariat.  A  law  of  the 
notorious  demagogue  Clodius  distributed  grain  without  com- 
pensation. Afterwards,  colonization  on  a  great  scale  removed 
part  of  this  evil  of  pauperism.  When  Csesar  became  in  fact 
sole  ruler  of  Rome,  with  the  same  object  in  view,  he  by  law 
remitted  one  year's  rent  of  houses  in  Rome  and  Italy,  not 
exceeding  the  value  of  2000  sesterces.  But  he  put  a  check  on 
the  distribution  of  corn  by  reducing  the  number  that  had 
received  it  from  320,000  to  150,000;  this  number  was  made 
the  maximum  for  the  future,  and  the  persons  who  should  die 
were  to  be  replaced  by  the  poorer  among  the  new  applicants. 
It  does  not  appear  that  able-bodied  men  could  not  partake 
of  this  gift  if  only  they  were  poor.  How  Caesar's  restrictions 
deserved  the  laudations  that  a  modern  historian  has  given  to 
them,  we  do  not  discover.*  The  largesses  of  Augustus,  chiefly 
from  his  own  private  means,  to  the  Roman  lower  class,  were 
very  vast ;  and  to  mention  but  one  thing  further,  which  had 
more  the  look  of  humanity  than  all  the  rest,  the  gifts,  made 
under  the  Emperor  Nerva  and  afterwards,  to  poor  boys  and 
girls,  called  alimcntarii pueri  et  pucllcz,  in  many  of  the  towns 
of  Italy  from  the  funds  of  the  towns,  were  dictated  apparently 
by  the  decrease  of  population  and  the  wide-spreading  decay 
of  material  prosperity.  Private  persons  also  gave  foundations 
for  this  purpose,  as  the  younger  Pliny  to  the  town  of  Como 
(Plin.,  Epist. ,  i.,  8,  comp.  Panegyr.,  26  -27). 

The  Christian  religion  gave  a  new  impulse  to  humanity 
proceeding  from  faith  in  a  common  Saviour  of  men  and  in  a 
brotherhood  of  believers,  so  that  more  was  done  in  the  west 
during  three  centuries  from  its  origin  than  had  been  done  in 
all  time  before.  Thenceforth  not  only  alms-giving  but  many 
institutions  of  charity  for  the  sick,  for  widows  and  orphans, 
for  the  burial  of  the  dead,  were  established,  while  individual 
gifts  were  made  for  the  ransom  of  captives,  the  relief  of 
debtors,  the  emancipation  of  slaves.    The  government  under 


*  Momnisen,  iv.,  591,  Amer.  cd.  of  ti  ansl. 


SUBJECT-MATTER  OF  LAW  AND  ADMINISTRATION.  417 


the  Christian  emperors  aided  in  these  works  of  love.  The 
duty  of  helping  the  poor  and  miserable  was  even  turned  into 
an  obligation  by  illogical  thinkers.  Jerome  says  that  the 
words  "  unrighteous  mammon  "  are  justified  by  the  fact  that 
all  riches  come  from  iniquity  ;  one  cannot  gain  unless  another 
loses — that  same  absurd  notion  which  has  been  expressed 
more  than  once  by  political  economists.  In  the  same  strain 
the  interest  of  money  was  condemned,  partly  because  Jew 
could  not  lend  to  Jew,  partly  because  usury  was  taken  with- 
out work.  Even  communistic  notions  prevailed,  such  as  the 
declaration  of  Ambrose  that  "  nature  has  created  the  right 
of  community,  and  it  is  usurpation  that  has  made  property." 
But  such  statements  are  to  be  ascribed  to  the  desire  of  pious 
rhetoricians  to  draw  men  from  their  covetousness  by  doctrines 
most  opposed  to  it.  The  efforts  of  humanity  were,  if  not 
always  judicious,  generally  in  the  right  direction.  In  the 
middle  ages  charity  took  the  same  course  in  the  cities,  where 
a  multitude  of  hospitals  for  the  sick,  the  poor,  and  other 
sufferers  were  founded  ;  while  in  the  country  the  serfs  on  the 
lands  of  seigniors  had  little  help  except  through  the  clergy. 
The  monasteries  were  open  to  the  needy  and  even  to  the 
beggar,  in  whose  laziness  and  vagabondage  the  monks  did 
not  see  as  much  to  find  fault  with  as  we  do  now. 

It  has  been  sometimes  said  that  the  suppression  of  the 
monasteries  in  England  took  away  from  the  poor  their  princi- 
pal friends,  and  that  thenceforth  the  help  of  state  law  became 
necessary.  Mr.  Haliam  considers  this  to  be  an  unfounded 
opinion.  "The  blind  eleemosynary  spirit,"  says  he,  "in- 
culcated by  the  Romish  church  is  notoriously  the  ca/zst-,  not 
the  ciire  of  beggary  and  wretchedness.  The  monastic  foun- 
dations, scattered  in  different  countries,  but  by  no  means  at 
regular  distances,  could  never  answer  the  end  of  local  and 
limited  succor,  meted  out  in  just  proportion  to  the  demands 
of  poverty.  ...  It  is  by  no  means  probable  that  the  poor 
in  general  were  placed  in  a  worse  condition  by  the  dissolution 
[of  the  monasteries]  ;  nor  arc  we  to  forget  that  the  class  to 
whom  the  abbey  lands  have  fallen,  have  been  distinguished 
VOL.  II.— 27 


4i8 


POLITICAL  SCIENCE. 


at  all  times,  and  never  more  than  in  the  first  century  after 
that  transference  of  property,  for  their  charity  and  munifi- 
cence." *  May  not  one  cause  of  the  increase  of  pauperism 
have  been  the  disappearance  of  the  yeomanry,  who  would  be 
succeeded  gradually  by  farm-laborers  on  the  soil  of  the  large 
proprietors  ?  f  Possibly  another  was  that  the  best  laborers 
flocked  to  the  towns,  as  these  began  to  start  upwards,  and  to 
offer  more  inducements  to  industry. 

By  the  first  statute  for  the  relief  of  the  impotent  poor, 
passed  before  the  dissolution  of  the  monasteries  (i535, 
27  H.  8),  a  fine  was  imposed  on  giving  alms  to  beggars,  and 
collections  were  to  be  made  in  every  parish.  In  1572,  under 
Elizabeth,  compulsory  contributions  were  first  tried.  In  1601 
the  famous  Poor  Law  Act  of  43  Eliz.  was  passed,  which  re- 
quired the  parishes  to  provide  for  the  support  of  maimed  and 
impotent  paupers,  and  to  provide  work  for  the  able-bodied 
poor  who  should  be  without  employment.  An  act  which 
was  passed  in  the  year  1662,  and  introduced  the  plan  of  set- 
tlement into  the  poor  law  system,  was  a  necessary  corollary 
to  the  earlier  ones  ;  for,  if  the  parishes  supported  their  own 
poor  and  were  compelled  to  do  it,  why  should  they  receive 
the  poor  from  other  parishes  also,  which  lay  under  the  same 
obligation.  From  this  time  the  poor  man  grew  more  like 
■An  adscriptus  glebce ;  if  he  became  impoverished  in  another 
parish  where  he  acquired  no  settlement  he  must  be  thrown 
back  upon  his  own  parish,  as  if  it  were  to  be  his  prison. 
Among  the  laws  afterwards  passed,  that  of  1795  seems  to 
have  been  the  most  harmful.  It  adopted  the  plan  of  adding 
to  wages  in  the  parish,  when  they  were  thought  to  be  insuffi- 

*  Const.  Hist.,  i.,  ch.  2,  p.  109,  onw. 

f  Mr.  ]>rodiick,  in  Cobdcn  Club  P^ssays  for  1875,  P-  22,  uses  the 
following  words  pertinent  to  our  subject :  "  The  fact  remains  that  by 
the  reign  of  William  IV.  the  descendants  of  freeholders,  who  once 
sat  as  judges  and  legislators  in  the  courts  of  their  own  county,  hun- 
dred and  township,  had  sunk  into  day-laborers  but  one  degree  re- 
moved from  serfdom,  dependent  on  individual  landlords  for  the  hum- 
blest dwelling,  and  on  landlords  assembled  at  quarter  or  petty  ses- 
sions for  the  security  of  every  civil  riglit." 


SUBJECT-MATTER  OF  LAW  AND  ADMINISTRATION.  419 


cient,  a  sum  from  the  poor  rates,— thus  making  large  classes, 
who  were  self-supporting  before,  objects  of  charity.  The 
operation  of  the  poor  laws  in  degrading  the  poor,  in  widen- 
ing the  circle  of  relief,  in  helping  the  unworthy  and  dissolute, 
in  laying  a  heavy,  almost  intolerable  burden  on  the  properties 
in  the  parishes,  reached  its  acme  during  the  early  part  of  the 
present  century.  It  is  said  that  the  poor  rates  in  1833  reached 
the  amount  of  8,6oo,ooo  pounds  sterling.  In  1834  a  new 
law  was  made,  after  a  commission  appointed  for  the  purpose 
had  made  a  careful  report.  The  principles  of  this  law  were 
to  confine  relief  to  the  destitute,  to  administer  only  to  the 
wants  of  the  aged  and  of  orphans  at  their  homes,  and  to  re- 
quire the  able-bodied  to  enter  workhouses,  if  they  desired  aid. 
A  new  system  of  workhouses,  serving  for  several  parishes, 
was  substituted  for  the  badly  regulated  parish  workhouses 
then  existing,  and  a  control  was  established  over  the  new 
boards  of  elected  guardians  of  the  poor,  through  a  board  of 
commissioners  in  London.  The  system  justifies  itself  by  its 
fruits,  which  are  seen  in  an  increased  self-respect  of  the  poor, 
in  a  diminution  of  the  number  receiving  charity,  and  in  the 
greatly  diminished  sums  expended  on  this  account,  reducing 
them  in  their  ratio  to  the  population  as  much  as  one-half. 
Still  all  could  not  be  effected  which  was  desired,  and  proba- 
bly never  will  be,  until  landed  property  shall  be  within  the 
reaich  of  the  lower  class  to  purchase.  The  "  Union-chargea- 
bilitj'  Bill  "  of  1865  removed  one  evil  arising  from  the  fact  that 
when  one  or  a  few  proprietors  owned  a  whole  parish,  they 
would  refuse  to  have  cottages  built  on  their  lands  for  their 
laborers,  in  order  to  prevent  them  from  acquiring  a  settle- 
ment there.  The  act  requires  each  separate  union  of  parishes, 
instead  of  each  parish,  to  have  equal  rates,  thus  removing  in 
great  part  the  motive  of  these  selfish  proceedings  of  the  land- 
lords.* 

I  have  given  the  particulars  of  English  legislation  in  brief, 

*  Molcsworth,  Hist,  of  Engl.  (1S30-T874),  iii.,  254. — Conip.  ihe 
same  writei  i.,  309  onw.,  for  the  now  poor  law,  May's  Const.  Hist., 
ii.,  564,  and  many  others. 


420 


POLITICAL  SCIENCE. 


in  order  to  set  forth,  by  a  striking  example,  the  difficulties 
which  attend  the  subject,  and  the  vastness  of  the  evils  of  a 
bad  system  of  public  charity.  The  English  law  has  shaped 
ours  in  some  of  the  older  states,  where  town-aid  and  settle- 
ment are  received  principles  of  the  poor  laws,  and  where  help 
at  home  is  afforded  to  the  able-bodied  more  or  less  in  the 
cities.  We  may  be  sure  that  the  problem  will  become  more 
serious  as  the  country  grows  in  density  of  population  and  in 
its  number  of  manufacturing  towns.  There  is  also  more  dan- 
ger here  than  in  England  that  indiscriminate  charity  in  the 
large  towns  will  creep  in,  and  work  the  same  evils  as  there. 
In  the  country  towns  the  evil  is  far  less  ;  the  poor  are  known 
to  the  inhabitants,  taxation  is  under  more  rigid  inspection 
than  in  the  cities,  and  the  system  of  letting  out  the  relief  of 
the  poor  to  the  lowest  bidder  is  not  an  inviting  one  to  the 
tenants  of  the  poor-house.  There  are,  indeed,  few  of  the  mis- 
chiefs of  pauperism  felt  outside  of  the  large  towns,  but  we  de- 
sire to  call  attention  to  one  or  two  possible  evils  in  the  future, 
and  to  some  of  the  best  means  of  administering  relief. 

I.  It  ought  ever  to  be  insisted  on  that  humanity  and  state 
order  are  the  reasons  for  relieving  the  poor,  and  not  justice. 
The  poor  have  a  right  to  work  when  they  can  find  work,  but 
have  no  right  to  demand  either  work  or  charity  from  the  state. 
If  the  other  theory  should  be  adopted,  into  which  men  are 
apt  to  fall,  it  will  have  far-reaching  consequences.  First,  it 
will  give  the  state  a  right  to  control  the  citizen,  or,  at  least, 
the  poor  citizen.  It  may  then  say,  "  If  you  have  a  right  to 
charity  or  to  have  work  found  for  you,  then  I  have  a  right  of 
self-preservation  against  the  increase  of  a  class  that  cannot 
support  itself.  I  have  a  right  to  prohibit  marriage  until  you 
can  support  a  family,  as  well  as  a  right  to  see  to  it  that  you 
labor  afterwards,  so  that  you  shall  not  become  chargeable  on 
my  resources."  Again,  the  state  would,  if  thus  bound  in  jus- 
tice, rightfully  demand  that  a  part  of  the  wages  of  men  enti- 
tled thus  to  support  should  be  paid  over  and  laid  up  for  the 
future.  And  still  further,  if  a  man  wastes  his  property  in 
drink  or  by  an  idle  life,  he  ought  to  be  treated  differently  from 


SUBJECT-MATTER  OF  LAW  AND  ADMINISTRATION.  421 


those  who,  by  calamities  not  of  their  own  causing,  are  worthy- 
recipients  of  the  bounty  of  the  public.  These  ought  to  be 
separated  from  the  unworthy  pauper  and  to  have  superior  fare. 

2.  May  not  the  law  of  settlement  be  a  great  hardship  in 
certain  cases.  We  will  suppose  the  case,  that  a  country  town 
with  good  water-power  is  chosen  as  the  place  for  a  number  of 
manufactories.  Two  or  three  thousand  workmen  are  collected 
together,  and  when  disasters  befall  the  business  of  the  coun- 
try and  the  manufacturers  arc  involved  in  ruin,  the  families 
of  workmen  have  acquired  a  "  settlement  "  by  six  years'  resi- 
dence, without  being  an  expense  to  the  township.  They 
have  thus  a  right  to  support,  but  when  the  capitalists  and 
their  capital  is  gone,  there  is  perhaps  not  one  wealthy  person 
left  behind.  Now  suppose  five  hundred  families  should  re- 
main for  si.x  months  or  a  year  in  this  dismantled  place  ;  would 
not  the  burden  be  crushing  to  those  who  barely  make  the 
ends  of  the  year  meet,  and  have  the  calamity  besides  of  losing 
the  home  sale  of  what  they  raise  on  their  farms  ?  The  law  of 
settlement  then  may  be  a  very  injurious  law,  which  shuts  up 
the  obligation  to  aid  the  poor  within  so  small  and  needy  a 
population.  It  would  seem  from  these  extreme  cases  as  if 
there  ought  to  be  some  equalization  of  burdens  between  the 
different  communities. 

3.  No  public  aid  to  the  poor  or  the  suffering  should  super- 
sede the  activity  of  private  persons.  If  it  were  possible,  that 
is,  if  the  burden  thus  thrown  on  the  benevolent  were  not  too 
great  to  bear,  the  management  even  of  the  public  relief  given 
to  the  poor  and  suffering  would  be  advantageously  put  into 
private  hands.  As  this  seems  impossible,  there  ought  to  be 
as  much  thrown  upon  humane  and  Christian  persons,  in  those 
acts  of  benevolence  which  require  immediate  contact  with 
pain  or  misery,  as  they  can  bear.  Besides  this,  they  will  of 
course  direct  the  methods  of  employing  the  funds  of  the  vari- 
ous private  benevolent  societies  ;  and  in  more  loosely  organ- 
ized ways  will  aid  the  p(x)r  and  helpless  of  their  churches  and 
their  neighborhoods. 

4.  If  it  is  the  state's  duty  to  help  the  unfortunate  poor,  it 


422 


POLITICAL  SCIENCE. 


ought  to  be  a  rigorous  rule  that  the  drunken,  the  dissolute, 
the  shiftless,  shall  not  be  put  on  an  equality  with  the  better 
class  of  paupers.  Hard  work  must  be  imposed  on  the  able- 
bodied.  Mendicancy  ought  to  be  suppressed  and  discour- 
aged by  refusing  help  to  street-beggars.  Imposture  in 
obtaining  relief  should  be  severely  dealt  with.  The  safety, 
itself,  of  the  community,  if  nothing  more,  should  be  protected 
by  severe  laws  against  the  "tramps"  that  now  infest  town 
and  country  in  the  northern  United  States. 

5.  Whether  the  government  of  a  country,  besides  assisting 
its  own  disabled  soldiers  and  sailors,  ought  to  found  hospitals 
for  various  ills,  as  for  the  deaf  and  dumb,  for  the  blind,  for 
the  insane  and  the  idiotic,  for  orphans  and  widows,  for  the 
cure  and  against  the  spread  of  various  contagious  and  noisome 
diseases,  will  depend  upon  the  amount  of  permanent  endow- 
ments supplied  by  private  persons,  and  on  the  answer  to  the 
question  whether  government  aid  will  dry  up  the  springs  of 
private  charity.  It  seems  to  devolve  especially  on  the  state 
to  provide  relief  when  deadly  epidemics  sweep  through  a  land, 
and  to  extend  their  agency  to  the  cure  of  pests  falling  on  do- 
mestic animals.  The  spread  of  such  diseases  the  government 
alone  is  able  to  prevent. 

6.  The  prevention  of  a  great  part  of  human  suffering  is  to 
be  sought  in  higher  moral  and  religious  cultivation  of  individ- 
ual and  of  family  life.  Here  we  come  to  the  important  and 
somewhat  difficult  subject  of  the  relation  of  the  state  to  gen- 
eral morals. 

§  250. 

IX.  I  assume  here,  as  having  been  proved  ia  the  second 
The  state's  duty  P'^''*^  of  this  work,  that  public  law  may  prohibit 
as  to  public  morals,  ^^^j  punish  acts  regarded  by  the  community  as 
immoral,  the  evil  of  which  extends  beyond  the  individual,  or, 
according  to  all  experience,  is  likely  to  extend  hereafter. 
Here  it  is  of  small  importance  to  decide  whether  these  classes 
of  immoral  conduct  are  evil  in  themselves,  or  only  in  their 
consequences  ;  whether  they  are  evil  in  the  use  or  only  in  the 


SUBJECT-MATTER  OF  LAW  AND  ADMINISTRATION.  423 


abuse  ;  whether  they  violate  an  individual  right,  besides 
harming  or  threatening  harm  to  a  community,  or  have  only 
the  latter  of  these  qualities.  They  must  injure  a  community 
and  must  be  open,  outward  acts,  in  order  to  be  brought  within 
the  range  of  prohibited  acts,  and  even  if  otherwise  perfectly 
innocent,  may  acquire  the  quality  of  injuring  the  public  in 
certain  circumstances  and  at  certain  times.  There  may  be 
nothing  harmful  to  others  at  ordinary  times,  if  a  person 
smokes  a  cigar,  but  self  preservation  would  require  men  to 
stop  him  from  doing  it  in  a  depot  of  gunpowder.  Thus,  then, 
in  the  morality  of  an  action,  there  is  no  absolute  indication 
that  it  is  innocent ;  in  its  immorality,  no  absolute  indication 
that  it  is  always  harmful  to  a  community.  Yet  there  is  reason 
to  believe  that  if  a  practice  is  immoral,  like  prostitution,  it 
must  be  deleterious  also  ;  and  the  immorality  of  it  in  some 
cases,  where  a  nation  is  enlightened,  will  make  every  one 
believe  at  once  that  it  must  be  hurtful  also.  Again,  an  act 
may  be  immoral  and  yet  not  properly  subjected  to  law  and 
penalty.  Thus  a  lie  is  forbidden  in  the  family  as  a  wrong  act, 
and  it  is  held  that  honesty  in  speech  would  prevent  a  thou- 
sand evils  which  falsehood  encourages  by  concealing  them. 
But  while  a  lie  in  an  official  person  ought  to  make  him,  it  may 
be,  liable  to  punishment,  a  lie  in  the  family  would  not 
perhaps  in  any  nation  call  for  the  interference  of  the  civil 
authority.  Why  is  this  ?  It  surely  cannot  be  because  im- 
moral acts,  which  hurt  no  one  in  particular ,  but  hurt  society  in 
general,  ought  not  to  be  noticed  by  law.  If  that  were  the 
case,  alt  kinds  of  immoral  acts  which  are  now  prohibited, 
ought  not  to  be  noticed  unless  a  distinct  case  of  personal 
injury  could  be  pointed  out.  Nor  can  it  be,  because  certain 
classes  of  immoral  acts  have  no  tendency  to  injure  society. 
For  there  arc  no  such  classes.  All  wrong-doing  is  more  or 
less  harmful.  Evil  in  any  form  tends  to  overthrow  public 
safety  and  prosperity  at  points  where  its  influence  seems  to 
be  impossible.  But  the  true  reasons  are  practical  ones,  and 
these  are,  among  others:  (i)  that  the  evil  from  certain  acts 
which  do  not  directly  violate  the  rights  of  others,  shall  be 


424 


POr.ITTCAL  SCIENCE. 


manifest  and  serious  ;  (2)  that  there  is  strong  temptation  to 
it  in  the  habits  of  the  age  and  country  ;  (3)  that  it  cannot 
easily  be  counteracted  in  any  other  way  save  that  of  direct 
prohibition  ;  (4)  that  there  is  no  discoverable  advantage  in 
allowing  the  evil  to  continue,  the  advantage  from  the  gains 
of  capital  being  really  of  no  account,  because  the  waste  from 
self-indulgence  in  the  consumer  more  than  balances  the  prof- 
its of  the  seller  or  producer  who  can  use  his  capital  in  some 
other  way  ;  (5)  that  the  evil  can  be  prevented  effectually  by 
law,  that  is,  that  public  opinion  will  not  oppose  the  execu- 
tion of  such  a  law,  that  it  can  be  executed  with  ease  if  prose- 
cuting officers  are  faithful,  that  evidence  can  be  found  of  the 
violations  of  it,  that  the  better  class  of  citizens  will  interest 
themselves  in  seeing  it  enforced. 

I  have  indulged  in  these  remarks  to  show  the  difficulties 
connected  with  this  subject,  which  are  sufficiently  great  to 
extinguish  the  contempt  that  is  felt  by  some  for  the  legislation 
of  past  times,  which  confounded  rights  and  morals.  But  the 
order  and  existence  of  society  would  be  imperilled,  if  legisla- 
tion merely  secured  rights.  And,  on  the  other  hand,  if  im- 
moral acts  were  forbidden  because  they  might  be  followed  by 
violation  of  private  rights,  that  would  open  a  door  far  too 
wide.  It  is  true  that  no  wise  distinctions  were  made  in  any 
of  the  old  codes  between  these  two  departments,  and  it  is 
true  that  the  ablest  men  made  mistakes  in  their  legislation. 
Thus,  Julius  Caesar  had  a  sumptuary  law  enacted,  although 
so  many  had  failed  before,  and  found  that  it  fell  into  neglect ; 
and  yet  Augustus  followed  him  in  one  which  fixed  the  ex- 
pense of  entertainments  i\t  a  certain  small  amount,  and 
Tiberius  tried  to  stop  the  use  of  expensive  utensils.*  But  it 
was  so  evident  that  a  state,  and  particularly  a  small  state, 
could  not  be  preserved  in  a  sound  condition  while  prodigality 
and  corruption  of  family  life  were  unnoticed  by  the  law,  that 
all  early  lawgivers  felt  it  necessary  to  put  a  restraint  on  the 
immoralities  of  society.    And  they  have  been  followed  in  all 

*  Comp.  Cic.  ad  Fam.,  vii.,  26,  2.  Suet.  Jul.,  43.  D.  C.iss.,  Ivii., 
§  15,  and  for  the  sumptuary  laws  in  general,  (icU.,  b.  11,  ch.  24. 


SUBJECT-MATTER  OF  LAW  AND  ADMINISTRATION.  425 


modern  states,  although  as  yet  no  metes  and  bounds  have 
been  fixed  for  legislation  on  moral  and  social  questions.* 
Nor  have  writers  on  legislation  succeeded  much  better.  Mr. 
Mill,  who  carried  personal  liberty  very  far,  and  holds  it  to  be 
the  highest  aim  of  the  state  to  aid  the  development  of  the 
individual,  yet  would  put  the  sale  of  spirituous  liquors  under 
restrictions.  And  I  cannot  find,  after  considerable  reflection, 
any  definite  limits  which  may  not  be  varied  by  the  habits  of 
society  and  the  dangers  of  society. 

The  following  limit  has  been  proposed  :  that  any  immoral 
act,  which  is  of  injury  only  to  him  who  commits  it,  ought  not 
to  be  the  subject-matter  of  a  law.  Thus,  if  a  man  were  not 
connected  with  society  by  any  family  or  other  close  ties,  he 
might  get  drunk  as  he  pleased  without  being  amenable  to 
law  ;  but  if  he  is  a  father  of  a  family,  or  a  minor,  he  ought  to 
be  punished.  And  so  the  supplier  of  the  liquor  should  have 
a  right  to  sell  it  in  the  first  case,  and  not  in  the  second.  But 
may  not  such  a  privileged  drinker  do  great  harm  to  the  com- 
munity where  he  lives,  and  is  not  the  example  sometimes  to 
be  considered  in  penal  and  police  regulations  ?  I  can  only 
allude  to  another  vice,  which  it  would  shock  the  community 
to  place  on  this  footing.  It  is  enough  to  say  that  none  of  the 
great  and  common  vices  of  society  stop  short  of  injuring 
society.  Every  vicious  man  corrupts  other  men,  and  helps 
to  keep  open  the  sources  of  corruption. 

We  consider  it,  then,  as  the  conclusion  to  which  all  reflect- 
ing men  will  arrive,  that  among  practices,  immoral  or  other- 
wise, ddeterious  to  society,  which  can  be  effectually  sup- 
pressed by  law,  those  ought  to  be  suppressed,  the  legisla- 
tion against  which  would  least  interfere  with  the  liberty 
of  individuals,  and  which  are  of  acknowledged  and  great 
evil  in  a  community.  Let  us  see  if  we  can  enumerate  any 
such. 

*  Moral  legislation  was  the  more  necessary  in  licallicn  nations, 
because  hcallieiiisin  was  immf)ral,  or  at  least  its  niytliology  gener- 
ally was  ;  it  is  the  more  natural  in  Cliristian  nations,  as  supporting 
the  suirit  of  the  religion. 


426 


POLITICAL  SCIENCE. 


1.  Houses  of  prostitution.     Christian  legislation,  it  is  be- 
Legisiation  con-  lievcd,  lias  always  frowncd  ou  such  places.  The 

ceriiing  brothels.  ^^jj  -^^^  itsclf  is  great,  as  destroying  the  moral 
tastes  and  making  it  almost  necessary  that  a  ruined  woman 
for  gain's  sake  should  sell  her  body.  In  modern  times  also, 
perhaps  since  the  times  of  the  Crusaders,  a  loathsome  disease 
has  infested  the  world,  which  spreads  through  generations 
the  seeds  of  weakness,  as  well  as  degrades  the  constitution 
and  even  the  capacities  of  families.  But  the  crime  courts 
secrecy,  and  may  escape  a  strict  police.  Some  laws,  there- 
fore, would  make  it  decent,  and  give  it  a  license,  prohibiting 
at  the  same  time  all  public  solicitation.  But  this  is  an  im- 
moral plan.  The  vice  thus  licensed  is  admitted  to  be  a  vice, 
and  thus  society  becomes  a  partner.  Or,  is  it  enough  that 
those  qu(^  qiicestum  corporc  faciunt  should  be  registered  and 
kept  in  health  under  a  medical  police.  This  secures  the 
health  of  the  community,  and  so  far  is  a  good  regulation. 
But  it  gives  increased  safety  to  those  who  indulge  their  pas- 
sions, and  so  far  tends  to  increase  the  vice.  Something  more 
seems  to  be  needed,  such  as  the  fear  of  arrest  and  exposure 
from  time  to  time  on  the  part  of  the  men  who  may  be  found 
in  such  haunts.  On  the  other  hand,  endeavors  to  reclaim 
the  unfortunate  ones  who  make  their  homes  there  ought  to 
go  along  with  severe  penalties  inflicted  on  keepers  of  brothels 
who  make  gain  out  of  other  persons'  sins. 

2.  The  sale  of  spirituous  liquors  and  drunkenness.  Here 
.s.-iie  of  spirituous  ^^'^  havc  au  immorality  of  the  most  serious  kind, 

liquors.  cherished  by  a  part  of  the  community,  but  which 

the  sober  part  claim  to  be  a  source  of  evil  greater  than  any 
other.  The  scale  on  which  intoxicating  drinks  are  used  is 
enormous  ;  the  revenues  derived  by  governments  from  this 
source  are  of  the  greatest  importance  ;  the  persons  concerned 
in  vending  them  as  their  entire  business  or  a  part  of  it,  are 
more  numerous  in  cities  than  those  who  pursue  any  other 
trade  ;  many  employments  could  not  succeed  without  adding 
this  sale  to  their  other  business,  and  the  most  contrary  opin- 
ions have  currency  in  respect  to  dealing  with  this  vast  evil 


SUBJECT-MATTER  OF  LAW  AND  ADMINISTRATION.  42/ 


of  the  United  States  and  of  other  northern  nations.  There 
is  no  dispute  as  to  the  magnitude  of  the  evil ;  the  dispute 
touches  the  right,  the  feasifeihty  of  repressing  it,  and  the  best 
way  of  so  doing.  As  for  the  riglit,  we  need  add  nothing  to 
what  has  been  said  except  that  a  man  under  the  influence  of 
strong  drink  is  a  source  of  constant  danger  to  other  men  ; 
and  if  he  is  in  any  employment,  may  cause  disaster  or  death 
to  those  who  arc  near  him  ;  that  such  a  man  engages  in 
brawls  which  may  cause  the  death  of  even  transient  persons  ; 
that  by  strong  drink  and  drunkenness  the  expenses  of  a  com- 
munity for  maintaining  a  police,  for  supporting  the  poor  and 
the  sick,  are  largely  increased  ;  and  that  by  this  means  fami- 
lies are  degraded  and  pauperized  more  than  by  all  others. 
Society,  then,  is  bound  to  prevent,  or,  if  that  is  not  possible, 
to  diminish  the  evil,  unless  some  right  of  the  individual  is  in 
the  way.  But  surely  no  man  has  a  right  to  get  drunk,  at 
least,  unless  he  is  shut  up  within  four  walls,  nor  then,  unless 
he  is  isolated  in  the  world  and  it  is  certain  that  his  habit  will 
not  be  a  burden  to  the  community.  And  the  sale  of  strong 
drink  stands  on  no  lower  ground,  to  say  the  least,  than  the 
sale  of  poisons  or  the  sale  of  violent  explosives,  or  than  the 
allowing  of  a  vicious  or  mad  dog  to  run  at  large.  If  the 
matter  is  put  on  the  ground  of  natural  right,  either  the  seller 
must  be  in  some  degree  responsible  for  the  evil  that  he  in- 
flicts on  individuals,  as  quack  doctors  are,  or  the  evil  may  be 
prevented,  in  a  measure,  by  putting  the  sale  under  restric- 
tions, or  the  sale  may  be  prohibited  entirely.  Let  us  look  at 
the  measures  for  preventing  it  that  have  been  advocated,  be- 
ginning with  the  prohibition  of  the  sale. 

Prohibition  has  been  supported  on  other  grounds  besides 
that  of  the  evil  growing  out  of  the  sale  and  use  of  strong 
di  ink.  It  has  been  classed  with  the  sale  of  poisons,  because 
the  alcohol  unmixed  is  a  noxious  substance  in  the  system. 
It  has  been  said  that  to  touch  anything  which  can  intoxicate 
is  a  sin  on  account  of  the  example  thus  placed  before  the 
weak,  wliich,  if  it  were  true,  would  only  affect  the  action  of 
individuals  acting  in  the  light  of  personal  dut}-,  but  could  not 


428 


POLITICAL  SCIENCE. 


be  a  ground  for  Icgislatioiv  It  has  been  claimed  that  much 
of  the  inferior  spirituous  liquor  is  adulterated,  which  may 
be  true,  as  it  is  of  coffee,  sugar,  and  even  flour.  Rut  this, 
while  it  calls  for  police  inspection  of  the  articles  sold  in  the 
shops,  does  not  in  itself  call  for  prohibition.  The  grocer  is 
bound  to  ascertain,  as  far  as  he  can,  that  his  articles  are  what 
they  pretend  to  be  and  contain  no  noxious  ingredients.  And 
this  will  be  generally  known  by  the  price  which  is  charged  to 
him,  and  by  the  reputation  which  certain  sellers  or  manufac- 
turers acquire.  And  there  are  chemical  and  other  tests  of 
spirituous  liquors. 

Prohibition,  then,  if  the  best  measure  for  suppressing 
drunkenness,  must  be  looked  at  simply  as  a  means  of  getting 
rid  of  a  very  enormous  evil  in  society.  Is  it  or  is  it  likely  to 
become  an  effectual  preventive  ?  Experience  in  this  country 
has  proved  that  it  is  not  effectual  ;  it  has  proved  that  it 
can  be  found  in  states  having  the  most  stringent  laws  against 
ardent  spirits  ;  that,  owing  to  the  divided  opinion  in  the 
state  or  in  the  country,  or  to  some  inherent  defect  in 
the  police,  a  law  against  selling  intoxicating  drinks  will  be 
enforced  for  a  time  with  great  strictness,  and  then  a  sudden 
rela.xation  of  vigilance  will  bring  things  back  nearly  or  quite 
where  they  were  before.  It  of  course  comes  into  state  poli- 
tics :  more  than  once  the  "  rum-sellers"  have  been  in  the 
ranks  of  one  party  and  the  "  temperance  men  "  in  those  of  the 
opposite,  and  quite  as  frequently  the  latter  have  run  a  ticket, 
generally  an  unsuccessful  one,  against  the  other  parties. 
The  public  contests,  as  in  all  cases  where  warm  feeling  is 
kindled  in  benevolent  communities  towards  social  evils,  have 
produced  fanaticism  and  the  spirit  of  denunciation.  The 
change  in  the  meaning  of  words  which  has  followed  this 
movement  is  remarkable,  as  indicating  at  once  the  greatness 
of  the  evil  in  the  minds  of  a  large  class  of  upright  men,  and 
their  almost  necessary  one-sidedness.  Abstinence  is  the  pro- 
per word  for  total  disuse  of  whatever  can  intoxicate,  but 
temperance  has  been  thrust  into  its  place ;  as  the  word  chas- 
tity was  seized  hold  of  by  the  ascetic  thinking  of  the  early 


SUBJECT-MATTER  OF  LAW  AND  ADMINISTRATION*.  429 

church,  and  so  abused  as  to  imply  that  all  the  married  are 
unchaste. 

The  result  has  been  tliat  prohibition  has  been  a  failure. 
This  was  owing  in  part  to  the  logical  extreme  to  which  the 
prohibitionists  went  of  including  in  the  law  all  malt,  all 
fermented,  all  vinous  liquors.  Those  who  had  lived  in  their 
own  country  on  beer  and  ale  were  not  disposed  to  submit  to 
such  a  law,  and  the  wealthy  could  procure  wines  in  their 
original  packages,  in  which  case  state  law  could  not  reach  it. 
This  made  the  law  seem  more  unreasonable,  and  it  came  to 
be  more  difficult  of  execution.  How  long  these  conflicts  will 
go  on  in  the  states  where  they  have  been  on  foot  for  years, 
we  cannot  say  ;  but  thus  far  they  have  not  accomplished 
their  object. 

There  are  two  other  methods  of  putting  a  stop  to  the  in- 
temperate use  of  alcoholic  liquors  :  one  that  of  pledged  absti- 
nence, with  which  we  have  here  nothing  to  do  ;  the  other  that 
of  license  and  police  regulation.  The  system  of  licenses  is 
liable  to  two  objections.  First,  it  is  opposed  by  those  who 
regard  abstinence  from  whatever  can  intoxicate  as  an  abso- 
lute duty.  It  is  a  sin  to  drink  such  liquors,  and  therefore  a 
sin  to  license  them.  This  is  logical,  if  the  premises  are  good  ; 
but  they  are  unsound,  if  abstinence  from  any  particular  arti- 
cle of  food  or  drink  is  not  necessarily  a  moral  virtue,  and  if 
every  individual's  conscience  must  judge  whether  in  his  case 
an  example  of  refraining  from  what  does  harm  to  others  is 
demanded  by  his  duty  to  them  or  not.  Christ's  conscience 
certainly  did  not  prescribe  rules  to  himself  of  abstinence 
from  such  articles,  although  he  mingled  with  persons  led 
astray  by  self-indulgence,  and  although  the  example  which  he 
set  of  "  eating  and  drinking"  would  certainly  influence  mul- 
titudes of  mankind.  We  conclude,  then,  that  license  is  law- 
ful in  this  case  because  the  indulgence  is  not  necessarily 
immoral. 

I5ut,  again,  if  license  is  not  wrong,  it  may  be  a  small  check 
on  drunkenness,  in  practice,  and  of  (hfTicult  execution.  A 
license  law  ought  to  be  guarded  and  made  rigorous  by  some 


430 


POLITICAL  SCIENCE. 


such  regulations  as  the  following  :  i.  None  ought  to  be 
licensed  who  cannot  be  trusted  in  to  fulfil  the  oblifjations 
implied  in  the  license  ;  and  any  violations  should  be  followed 
by  fines  large  enough  to  secure  fidelity.  2.  Provision  ought 
to  be  made  for  examining  the  quality  of  all  spirituous  liquors 
sold  by  the  licensed  venders,  and  for  destroying  adulterated 
and  hurtful  compounds.  3.  There  ought  to  be  no  access  to 
or  from  such  buildings  after  a  certain  time  of  night,  or  on 
Sundays,  under  penalty  or  liability  of  forfeiting  the  license. 
4.  Any  person  seen  going  from  such  a  place  in  a  state  of 
intoxication,  or  unable  to  take  care  of  himself,  ought  to  be 
arrested,  and  the  keeper  of  the  house  should  be  made  re- 
sponsible for  fostering  his  evil  habits.  5-  A  I'ule  which 
prevails  in  some  places  is  worthy  of  adoption,  if  it  be  found 
a  practical  one  after  the  tests  to  which  it  has  been  or  may  be 
put.  It  is  that,  if  a  wife  or  a  parent  traces  the  intoxication  of 
a  kinsman  to  a  drinking  house,  after  notice  given  to  the  keeper 
of  the  house,  the  latter  may  incur  a  heavy  penalty  for  again 
supplying  his  victim  with  intoxicating  drink.  Such  a  rule 
may  be  of  little  use  in  a  community  where  there  are  many 
drinking  houses,  and  the  next  of  kin  may  be  unwilling  to 
give  the  notice.  Otherwise,  it  would  be  very  effectual. 
6.  Debts  incurred  for  liquor  drunk  at  the  place  where  it  is 
sold,  or  carried  home  from  thence,  ought  not  to  be  recoverable. 
It  must  be  sold  for  ready  money,  or  not  at  all. 

One  of  the  great  supports  of  the  free  sale  of  liquors  is  the 
feeling  that  personal  rights  are  invaded  by  any  restriction  or 
prohibition.  I  do  not  believe  that  this  most  ungrounded 
feeling  can  ever  be  done  away  with  entirely,  and  so  the  ques- 
tion may  fairly  be  asked  whether  it  ought  not  to  be  taken 
into  account  in  legislation.  If  it  is  so  strong  as  to  produce 
marked  opposition  to  a  restrictive  law,  it  will  have  an  appre- 
ciable force  in  making  such  a  law  difficult  of  execution. 
Prohibitory  legislation  always  strikes  against  this  law,  par- 
ticularly when  it  includes  in  its  list  of  prohibited  drinks  malt 
liquors  or  vinous  liquors,  which  thousands  have  been  accus- 
tomed to  regard  as  harmless  in  the  use.    On  the  other  hand, 


SUBJECT-MATTER  OF  XAW  AND  ADMINISTRATION'.    43 1 


licenses  put  a  man  under  bonds  ;  he  applies  for  a  certain  per- 
mission, and  comes  under  certain  obligations  when  he  receives 
it ;  if  he  does  what  is  not  included  in  the  license,  he  cannot 
complain  of  the  consequences  ;  others  who  observe  the  law 
will  not  sympathize  with  one  who  tried  to  increase  his  business 
at  their  cost  by  his  illegality  ;  and  so  the  license  law  will  not 
excite  much  ill-blood  as  being  a  violation  of  freedom.  Nor 
will  the  power  of  rejecting  unsuitable  candidates  for  a  license 
be  a  cause  of  much  complaint  cither  in  society  or  among  the 
privileged  dealers.  Still  it  partakes  of  the  nature  of  a  mo- 
nopoly which  is  odious  under  free  institutions,  and  it  may  be 
so  difficult  of  enforcement  and  so  much  disrelished  by  a 
portion  of  a  community,  that  it  will  become  in  the  hands  of 
the  enforcing  officers  a  dead  letter. 

3.  The  sale  of  obscene  books  and  pictures  is  generally  and 
justly  prohibited.  Here  there  is  only  indirect  harm  to  the 
community  from  the  evil  wrought  on  the  individual,  and  the 
moral  aim  of  this  prohibition,  especially  the  desire  to  keep 
the  young  from  corruption,  is  apparent.  The  same  is  true 
of  indecent  exhibitions  of  the  person.  It  might  be  asked  why 
immoral  books  also  should  not  expose  the  publisher  to  a  fine, 
and  with  the  more  reason  because  immoral  histories  of  guilty 
passion,  intended  merely  to  please,  may  be  made  more  seduc- 
tive than  obscene  pictures  ever  can  be.  Works  of  art  repre- 
sent the  event  of  a  moment,  but  a  skilfully  written  book  can 
present  the  progress  of  wrong  desire  in  such  colors,  with 
such  excuses,  with  such  representations  of  the  fatality  of  hu- 
man beings  under  temptation,  as  to  work  corruption  in  the 
soul  for  a  lifetime.  But  the  difficulty  of  drawing  lines  here 
would  make  legislation  almost  impossible. 

4.  Cruelty  to  animals.  We  have  already  had  occasion  to 
speak  of  the  laws  against  this  class  of  acts,  as  dictated  by  hu- 
manity, by  the  feeling  which  revolts  against  and  condemns 
all  kinds  of  cruelty  towards  domestic  animals,  whether  it  be 
that  of  overburdening  their  capacity  to  draw  or  carry,  of  pun- 
ishing them  savagely  in  anger,  of  withholding  from  tiiem 
necessary  subsistence,  of  heartlessly  neglecting  to  provide  for 


432 


POLITICAL  SCIENCE. 


them,  or  of  transporting  them  to  market  in  a  way  that  ex- 
poses them  to  suffering  and  injury.  The  reason  why  men 
make  such  laws  Hes  not  mainly  in  the  fear  lest  cruelty  to  ani- 
mals may  cherish  the  same  feeling  towards  men,  nor  in  the 
evils  of  public  shows  of  cruelty,  but  in  the  feeling  that  the 
conduct  is  unworthy  of  a  man,  and  in  the  indignation  aroused 
by  the  sight.  Not  all  nations  have  had  laws  against  this 
wrong.  The  mild  Hindoos,  especially  the  Buddhists,  taught 
the  evil  of  killing  animals,  since  their  philosophy  saw  in  other 
living  creatures  the  souls  of  men.  The  Buddhists  forbade  the 
killing  of  anything  that  had  life,  taught  the  exercise  of  com- 
passion towards  brutes,  and  required  that  old  and  sick  ani- 
mals should  be  cared  for.  But  no  laws,  that  I  know  of, 
against  cruelty  to  animals,  were  made  by  this  race.  The 
Hebrews  have  a  number  of  provisions  in  their  law  against  im- 
proper uses  of  animals,  some  of  which  breathe  the  spirit  of 
enlightened  humanity,  while  others  may  be  explained  on 
other  grounds.  The  prohibition  in  Lev. ,  xix. ,  19,  may  be  re- 
garded as  an  extension  of  the  law  against  unnatural  crime, 
and  is  plainly  dictated  by  a  moral  feeling  excited  by  the  un- 
cleanness  of  bastard  animals.  In  another  passage.  Lev. ,  xxii. , 
27,  it  is  forbidden  to  kill  for  an  offering  the  young  of  a  cow, 
sheep,  or  goat,  before  it  is  eight  days  old  ;  and  the  dam  is  not 
to  be  slaughtered  on  the  same  day  with  her  young.  The  first 
of  these  prohibitions  may  be  explained  on  the  ground  that  the 
young  animal  ought  not  to  be  eaten — as  at  the  sacrificial 
feast — immediately  after  its  birth  ;  the  other  seems,  without 
question,  to  be  dictated  by  humane  feeling  (Comp.  Knobel, 
in  loc),  and  probably,  as  Saalschiitz  contends  (Mos.  R.,  p.  179), 
this  is  true  in  both  cases.  The  command  not  to  boil  a  kid  in 
its  mother's  milk  (Ex. ,  xxiii. ,  19,  and  in  two  other  places)  may 
be  explained  in  the  same  way,  but  most  probably  had  its  ori- 
gin in  idolatrous  sacrifices  of  the  kind  specified.  (Com.  Kno- 
bel, in  loc.)  The  law  that  the  ox  and  ass  shall  rest  on  the 
Sabbath,  may  be  understood  as  ensuring  the  more  completely 
the  rest  of  the  owner  himself ;  but  that  other  law,  to  the  effect 
that  the  ox  which  threshes  the  corn  must  not  be  muzzled. 


SUBJECT-MATTER  OF  LAW  AND  ADMINISTRATION.  433 


clearly  indicates  a  humane  spirit,  as  if  the  hiboring  beast  were 
worthy  of  the  few  stalks  it  could  snatch  up  amid  its  work. 
The  same  humanity  appears  in  the  prohibition  earnestly  en- 
forced (Deut. ,  xxii.,  6,  7)  against  carrying  off  the  mother  bird 
with  its  young.  "  By  all  means  let  the  mother  go  free,  and 
take  the  young  [or  the  eggs]  to  thee,  that  it  may  be  well  with 
thee  and  thou  mayest  lengthen  thy  days."  There  may  be  also 
in  this  passage  an  aim  to  keep  up  the  species  of  birds,  but  the 
appeal  to  humanity  is  sufficiently  obvious.  And  to  mention 
but  another  precept :  when  the  Hebrew  was  required  to 
give  aid  in  case  the  ox  even  of  his  enemy  had  fallen  under 
its  burden,  this  was  dictated  not  merely  by  a  desire  of  culti- 
vating the  fraternal  spirit,  but  also  by  compassion  for  the 
fallen  animal. 

Such  laws  are  not  found  to  have  existed  in  Greece  or  in 
Rome,  so  far  as  I  have  been  able  to  discover,  although 
towards  slaves  the  Athenian  code  was  especially  humane.  A 
very  singular  and  trifling  provision  in  the  laws  of  the  Ale- 
manni  seems  to  show  that  the  uncivilized  Germans  were  sus- 
ceptible of  pity  towards  brutes. 

5.  Gaming  or  gambling.  The  fascination  of  games  of  haz- 
ard is  so  great  among  civilized  as  well  as  uncivilized  nations, 
that  among  the  former  men  state  their  whole  property  on  the 
issue,  and  among  the  latter  stake  even  their  personal  freedom. 
What  is  commonly  called  gambling  produces  the  greatest 
amount  of  evil  to  society  ;  but  various  other  sports,  the  issue 
of  which  is  uncertain,  and  on  which  men  risk  money  in  bets, 
are  also  of  no  small  injury  to  society.  Such  are  especially 
cock-fighting,  dog-fighting,  and  the  various  kinds  of  races,  as 
well  as  pugilistic  contests.  Some  of  the  races  arc  noble  con- 
tests, not  set  on  foot  for  the  purpose  of  staking  money  on 
them  ;  but  it  is  found  that  every  game  attended  with  risk,  al- 
though its  aim  may  be  good,  is  abused  for  the  purposes  of 
the  gambler.  All  these  sports  and  games  are  prohibited  and 
were  prohibited  of  old,  whenever  it  was  found  that  they  were 
injurious  to  society.  The  Roman  law  forbade  gaming  for 
money  (vetita  legibus  alca,  I  lor.  Carm.,  iii.,  24,  58),  and  made 
VOL.  II. — 28 


434 


POLITICAL  SCIENCE. 


gambling  debts  unlawful  ;  it  allowed  the  recovery  of  money 
paid  to  another  for  this  purpose  within  fifty  years.  Only  at 
the  time  of  the  Saturnalia,  and  in  the  case  of  certain  kinds  of 
games  which  exercised  courage  and  skill,  was  the  law  relaxed. 
(Comp.  <^  35.)  The  English  law  in  the  time  of  Blackstonc 
may  be  found  in  his  commentaries,  (iv.,  171,  172.)  With 
us,  also,  gaming  contracts  are  void,  and  money  lost  at  gam- 
ing maybe  recovered  (^in  some  of  the  United  States,  at  least), 
by  the  loser.  The  reason  for  these  prohibitions,  where  a 
right  of  another  may  not  be  injured,  lies  evidently  in  the  idle- 
ness, theft,  and  debauchery  that  are  apt  to  attend  on  gam- 
bling, especially  among  the  lower  classes,  and  in  the  character 
formed  by  giving  way  to  a  gambling  spirit.  In  other  words, 
it  is  for  moral  reasons  that  the  laws  are  enacted.  Whether 
speculations  in  stocks,  when  they  have  assumed  the  nature  of 
gambling,  cannot  be  brought  under  the  same  laws,  may  be 
reasonably  asked  ;  but  there  are  difficulties  attending  on  the 
execution  of  such  laws,  as,  indeed,  "  debts  of  honor"  gener- 
ally escape  the  notice  of  criminal  prosecution.  It  is  not  diffi- 
cult, however,  to  bring  within  the  meshes  of  the  law  the 
keepers  and  servants  in  gambling-houses. 

6.  Laws  restraining  luxury,  or  sumptuary  laws.  To  these 
we  have  already  referred  as  having  been  enacted  in  various 
small  states,  but  with  very  little  success.  The  motive  is  a 
moral  and  social  one,  and  is  to  be  commended  in  itself ;  for 
nothing  leads  more  directly  to  fraud  and  various  immoralities 
than  the  expensiveness  of  dress,  entertainments,  equipage, 
and  furniture.  When  the  means  of  persons  in  a  high  social 
position  increase,  they  raise  their  style  of  living  ;  this  leads 
others,  in  a  country  where  a  general  equality  prevails,  to  imi- 
tate them,  even  if  they  must  do  so  by  living  beyond  their 
means  ;  soon  commercial  disaster  and  habits  of  expense  take 
away  the  power  of  supporting  the  style  by  honest  means,  and 
multitudes,  rather  than  endure  the  shame  of  falling  below 
their  rank,  resort  to  various  kinds  of  dishonesty,  liut  sump- 
tuary laws  are  not  the  way  to  cure  this  evil,  as  the  experience 
of  Rome  showed,  and  as  the  nature  of  the  case  makes  appar- 


SUBJECT-MATTER  OF  LAW  AND  ADMINISTRATION.  435 


ent.  For,  first,  the  opinion  of  society  governs  the  style  of 
living,  in  great  measure  ;  and  that  opinion  will  either  change 
or  abolish  the  sumptuary  laws.  Secondly,  the  producers  and 
traders  see  no  evil  in  the  indulgences  of  people  of  wealth. 
They  themselves  have  the  same  tendency  to  extravagance, 
because  they  do  not  anticipate  evil.  All  persons,  almost, 
except  the  political  economist,  seem  to  think  that  enlarged 
consumption  must  of  course  be  a  blessing.  Thirdly,  the  per- 
sons who  would  feel  such  laws  most  are  best  able  to  ward  off 
the  effects  from  themselves.  Acting  thus  unequally  on  dif- 
ferent classes  and  having  no  visible  results,  they  are  abrogated 
or  remain  a  dead  letter.  A  well-devised  tax  on  incomes, 
questionable  as  such  a  tax  may  be,  would  produce  more  effect 
in  restraining  expenses  than  all  the  sumptuary  laws  that  have 
ever  been  made  or  projected. 

Montesquieu  has  some  remarks  on  sumptuary  laws  (b.  vii., 
ch.  1-5)  which  show  his  opinion  in  regard  to  their  use  under 
different  forms  of  polity  ;  on  the  whole,  he  seems  to  fmd  no 
fault  in  them  where  they  can  be  enforced.  In  a  republic,  he-' 
remarks,  luxury  is  the  ruin  of  the  state,  and  is  rendered  pos- 
sible by  the  increasing  inequalities  of  condition.  "  In  order 
to  have  an  equal  distribution  of  riches,  the  law  ought  to  give 
each  man  only  just  what  is  necessary  for  nature  "  (ch.  i).  But 
this  plainly  would  be  a  fight  against  nature,  which  always  has 
been  and  always  will  be  the  author  of  inequalities.  "In  an 
aristocracy  which  is  ill  constituted,  the  wealthy  noble  is  not 
allowed  to  spend,  and  the  people  have  nothing  to  spend. 
Greece  was  wiser.  The  rich  spent  their  money  in  ways  which 
gratified  the  people.  Wealth,  therefore,  was  as  burdensome 
as  poverty."  But  we  now  charge  the  liturgies  and  other 
public  services  of  Athens  to  the  tyranny  of  the  lower  people. 
Injustice,  then,  must  be  used  to  deplete  the  wealthy.  "  In  a 
monarchy  there  is  an  absolute  necessity  for  luxury.  If  the 
rich  did  not  spend  largely,  the  people  would  starve.  For  the 
preservation  of  a  monarchy,  riches  ought  to  grow  in  amount 
as  the  ranks  of  society  rise  upward.  Sumptuary  laws  did  not 
suit  a  monarchy  at  Rome,  and  luxury  is  absolutely  necessary 


436 


POLITICAL  SCIENCE. 


in  both  monarchies  and  despotisms."  But  while  this  is  true, 
it  is  not  all  the  truth.  Sumptuary  laws  are  enacted  to 
prevent  or  destroy  an  evil  that  is  already  too  inveterate  to  be 
destroyed.  Tacitus  (Annal.,  iii. ,  53)  niakes  the  emperor  Tibe- 
rius say,  in  a  letter  to  the  senate,  that  "the  many  laws 
devised  by  the  men  of  olden  times,  the  many  that  the  late 
emperor  Augustus  had  passed — the  former  becoming  a  dead 
letter  by  being  forgotten;  the  latter,  what  is  more  disgraceful, 
by  the  conternpt  they  met  with — have  rendered  luxury  more 
secure."    The  whole  series  of  laws  was  a  failure. 

A  government  may  make  laws,  says  Montesquieu,  to  pro- 
mote absolute  frugality,  which  is  the  spirit  of  sumptuary  laws 
in  a  republic ;  or  to  promote  relative  frugality,  which  is 
effected  by  prohibiting  expensive  foreign  products  that  re- 
quire such  an  exportation  of  home  manufactures  as  to  cause 
more  loss  than  advantage.  His  meaning  must  be  either  more 
moral  loss  than  moral  gain,  or  loss  rather  than  gain  of  riches. 
But  how  crude  the  politico-economical  doctrine  here  is,  if  we 
are  right  in  our  doctrine  at  the  present  age !  If  home  manu- 
factures are  exported,  it  will  be  because  they  are  made  at  a 
relative  profit ;  and  if  prices  at  home  rise,  the  exportation 
»  must  by  and  by  cease,  for  in  the  other  nation,  or  somewhere 
else,  the  articles  will  then  be  made  cheaper.  Until  that  time, 
the  home  production  will  be  stimulated  and  the  laborers  be 
employed.  And  what  is  meant  by  too  high  prices  ?  Not,  cer- 
tainly, too  high  for  the  importer's  ability  to  dispose  of  them, 
nor  too  high  for  the  nation  importing  to  pay,  for  then  the 
importation  would  stop  of  itself. 

And  this  leads  us  to  the  inquiry  whether,  in  the  interests  of 
TaritTs  In  the  in-  Hiorality,  auy  law  endeavoring  to  keep  the  in- 
terests of  morals,  habitants  of  a  nation  from  vicious  or  expensive 
indulgences  ought  to  be  passed.  The  answers  may  be  two- 
fold :  I.  The  modern  plan  of  laying  duties,  not  equally  on' 
everything,  but  unequally,  so  as  to  derive  as  large  a  part  of 
the  duty  as  possible  from  expensive  articles  used  only  by  the 
rich,  has  proved  so  successful  and  is  so  unobjectionable  on  prin- 
ciple, that  probably  it  will  never  be  abandoned.     It  imposes 


SUBJECT-MATTER  OF  LAW  AND  ADMINISTRATION.  437 


a  considerable  burden  on  articles  of  great  expense,  which  will 
not,  within  reasonable  limits  of  taxation,  be  reduced  in  de- 
mand. Those  who  want  silks  and  costly  wines  will  not  fall 
off  much  in  number,  if  the  duty  rises  one-quarter;  while  an 
equal  increase  of  duty  on  articles  in  general  use  might  greatly 
diminish  the  call  for  them.  Or,  if  they  should  fall  off  to  such 
an  extent  that  the  raised  tariff  occasioned  no  increase  of  reve- 
nue, no  harm  would  be  done.  2.  On  the  other  hand,  the 
use  of  a  tariff  for  moral  purposes  directly  is  exceedingly  ques- 
tionable. There  are  immoral  books  and  pictures.  Shall 
these  be  prohibited  ?  If  so,  we  must  have  a  new  kind  of 
inquisitors  in  the  world,  or  the  state  itself  must  make  an  index 
librorum  prokibitorum.  The  books  and  pictures,  moreover, 
would  acquire  a  new  value  from  the  very  prohibition.  Or 
shall  we  have  regulations  tending  to  decrease  expense  and 
increase  frugality  ?  Here  new  difficulties  arise  which  will 
require  that  the  private  affairs  of  every  individual  shall  be 
scrutinized,  and  a  limit  set  to  consumption,  as,  for  instance, 
by  a  tax  on  consumption,  which  no  dealer  or  producer  would 
bear.  3.  All,  then,  that  can  be  done  to  put  an  end  to  "  lux- 
ury "  with  any  success,  must  be  done  by  private  persons  who 
are  wealthy,  or  by  some  change  in  public  taste  and  morals. 

7.  In  closing  these  remarks  on  legislation  for  the  promotion 
of  morality,  we  may  ask  whether  there  are  any  cases  where 
the  state  can  enforce  moral  duties,  and  whether  its  whole 
action  under  this  head  is  not  limited  to  the  prevention  and 
punishment  of  immoral  acts.  I  believe  that  this  is  all  the 
state  can  do  ;  it  being  understood,  however,  that  in  the  term 
immoral  acts  is  included  negligence,  or  failure  to  do  what 
morality  demands,  such  as  thoughtless  exposure  of  the  per- 
son. It  may  be  that  in  some  small  states,  where  the  commu- 
nity was  little  more  than  a  large  family,  the  laws  undertook 
to  go  quite  beyond  this  ;  but  certainly,  in  large  communities, 
more  than  this  would  be  nearly  impracticable.  Ingratitude 
towards  parents,  we  arc  expressly  informed,  was  actionable 
at  Athens,  and  it  also  exposed  a  man  who  was  drawn  to  hold 
office,  to  be  rejected  when  his  qualifications  were  examined 


438 


POLITICAL  SCIENCE. 


(Xen.,  Mem.,  ii.,  2,  13),  which,  however,  was  merely  an  act 
of  self-defence  on  the  part  of  the  people.    The  action  referred 
to  by  Xenophon  can  be  no  other  than  the  public  suit  of  ill- 
usage  towards   parents  (/ca/cwcrt?  jovicov).     This  could  be 
brought  against  children  who  abused  their  parents  by  word 
or  deed,  when  they  refused  them  food,  being  able  to  provide 
it,  and  when  they  refused  to  bury  them.    The  first  of  these 
acts  implies  more  than  immorality  ;  the  second,  on  account 
of  the  close  family  tie,  may  be  looked  on  as  almost  a  viola- 
tion of  right ;  the  third  was  not  only  ungrateful,  but  irreli- 
gious. It  is  said  also  that  in  the  mutual  aid  societies  at  Athens 
this  action  of  ingratitude  could  be  brought  against  a  member. 
This  kind  of  suits  is  a  very  obscure  subject;  but,  if  there  were 
a  suit  answering  to  this  title,  it  could  be  explained  on  the 
ground  that  the  mutuality  in  those  clubs  conferred  an  obliga- 
tion upon  each  of  the  persons  benefited.*    The  only  thing 
that  I  know  of  in  Roman  law  which  looks  like  the  treatment 
of  ingratitude  as  a  wrong  to  be  estimated  or  punished,  is  a 
provision  of  the  lex  .^lia  Sentia,  passed  in  A.D.  3,  which 
gave  the  patron  the  right — besides  that  of  relegating  the 
freedman  beyond  the  hundredth  mile  from  Rome  (Tac, 
Annal.,  xiii.,  26),  of  accusing  him  71I  iiigratum.     This  law 
then  qualified  mamumission,  and  the  duties  owed  to  the  pa- 
tron almost  turned  into  claims. f 

*  Comp.  Meier  u.  Schoeni.,  Att.  Proc,  pp.  448,  449  ;  and  for  the 
suits  against  members  of  the  same  ipavos,  K.  F.  Hermann,  Gr. 
Staatsalt.,  §  146,  9. 

f  Com.  Dig.,  xl.,  9,  30.  For  ingratitude  as  a  ground  of  public 
prosecution  among  the  Persians,  comp.  Xen.  Cyrop.,  i.,  2,  7.  The 
laws  of  Mann  lay  a  fine  on  one  who  forsakes  father,  mother,  wife,  or 
son,  viii.,  388  (p.  281  of  Houghton's  ed.  of  Jones's  trcnsl.).  The  in- 
ofticiosum  testamentum  (§  48),  as  defined  by  J.  Pauliis,  Sentent., 
iv.,  5  (in  Huschke's  Jurispr.  Antejustin.),  is  that  which,  "  frustra  liberis 
ex  heredatis,  non  ex  officio  pietatis  videtur  esse  conscriptum."  It  is  the 
want  of  pietas,  as  in  the  case  of  a  freedman,  which  constitutes  the 
injury  to  the  natural  heir. 


CHAPTER  XII. 


THE  state's  relations  TO  RELIGION. 
251. 

I  COME  now  to  an  important  and  difficult  subject,  on  which 
the  opinions  of  almost  the  whole  past,  since  states  were  founded, 
differ  from  those  which  are  entertained  at  the  present  time  by 
large  numbers  of  thinking  persons,  and  by  nearly  everybody 
in  this  country.  In  another  part  of  this  work  76,  78,  a) 
I  have  tried  to  show  that,  for  the  same  reason  for  which  the 
state  furnishes  education  to  children  and  seeks  to  promote 
morality,  not  only  the  protection  of  religion,  but  even  the 
establishment  of  a  state  church  can  be  defended,  provided, 
however,  all  the  people  be  allowed  the  free  exercise  of  their 
worship,  according  to  their  preferences.  Yet  I  added  that 
while  a  state  can  get  along  very  well  with  such  a  national 
church  when  all  are  of  one  way  of  thinking,  dissent  will  in- 
evitably creep  in,  if  an  age  ensues  when  men  speculate  and 
debate  on  religion,  and  then  the  religious  establishment  may 
struggle  for  its  life,  and  the  struggle  may  imperil  the  interests 
of  the  state  or  of  religion  itself.  The  safest  way,  therefore,  J 
of  dealing  with  religion  at  such  a  time,  is  to  leave  it  entirely 
to  itself,  and  in  some  few  countries  no  other  adjustment  of 
relations  is  possible. 

That  which  gives  this  question  its  great  weight  among 
questions  touching  the  d.ity  and  policy  of  the  state,  is  the 
importance  of  religion  as  a  power  in  the  state  and  in  the  life 
of  man,  and  the  attachment  which  multitudes  of  persons  feel 
for  their  religion.  It  was  no  overestimate  of  the  Romans, 
which  in  the  phrase  pro  oris  ct  focis,  made  religion  and  the 
family  stand  for  the  objects  that  are  most  worth  defending. 
Tiic  heathen  valued  their  religions  because  the  stability  of 
earthly  interests  was  found  in  the  protection  of  spiritual 


440 


POLITICAL  SCIENCE. 


powers  ;  state,  family,  and  individual  alike,  feeling  need  of 
such  protection.  Nor  was  it  divine  power  to  protect,  and 
fear  of  divine  wrath,  if  unpropitiated,  that  alone  led  to  wor- 
ship ;  but  worship  was  natural,  a  natural  want,  as  necessary 
as  human  society.  To  this  the  Christian  religion  adds  the 
conviction  that  it  reveals  the  perfection  of  character,  and  the 
means  for  attaining  at  once  to  a  perfect  character  and  a 
harmony  with  God ;  and  that  the  state  perceives  such  a 
character,  formed  by  religion,  and  by  religion  only,  to  be 
as  necessary  to  make  the  citizen  a  perfect  citizen,  as  the  man 
a  perfect  man.  The  state  reaches  its  highest  aims  only  by 
something  that  lies  out  of  itself,  and  thus  seeks  to  get  all  the 
aid  possible  for  itself  from  this  source. 

In  considering  the  relations  of  religion  to  the  state,  we 
shall  divide  the  religions  into  three  classes.  The  first  class 
may  comprise  those  which  were  made  up  chiefly  of  worship, 
external  forms,  and  mythology,  which  had  no  vital  connection 
with  political  institutions,  and  expressed  a  part  of  the  truths 
of  natural  religion  in  a  polytheistic  form.  Most  of  the  heathen 
religions  belong  here.  Another  class  of  natural  religions 
consist  of  such  as  are  organically  connected  with  the  state  by 
means  of  institutions  of  sacred  origin.  Here  belong  the  re- 
ligions of  caste  and  hereditary  classes— the  Brahminical  and 
Egyptian — the  religion  of  Iran,  and  perhaps  that  of  the  Druids 
in  the  Celtic  race,  with  the  Mexican  and  Peruvian.  In  the 
third  class  may  be  included  Judaism,  Mohammedanism,  and 
Christianity,  the  three  monotheistic  systems  of  the  world. 
The  first  class  of  polytheistic  religions,  apart  from  some  hoaVy 
myths,  took  their  form  in  the  mythological  age  in  the  coun- 
tries where  they  grew  up,  or  else  were  borrowed  in  part  from 
surrounding  nations.  These  mythologies  contain  in  them- 
selves very  little  of  which  the  state  could  make  use  for  its 
purposes  of  political  training.  Tlie  second  class  consists  of 
those  which  moulded  or  transformed  the  states  where  they 
flourished  by  means  of  religious  institutions.  These  have 
the  most  intimate  connection  with  the  state,  but  were  on  that 
account  essentially  local.    Brahminism,  for  instance,  could  not 


THE  state's  relations  TO  RELIGION.  44 1 


spread  much  beyond  India,  because,  to  introduce  its  institu- 
tions, would  require  a  complete  remodelling  of  society,  which 
existing  interests  would  oppose  ;  while  Buddhism,  having  no 
such  fixed  institutions,  was  able  to  spread  over  various  races. 
In  the  third  class  are  embraced  three  religions  w'hich  spread 
chiefly  by  ideas  of  the  spiritual  world,  and  could  be  com- 
bined with,  any  political  forms;  thus,  Judaism  in  the  course 
of  time  had  several  political  forms,  and  could  propagate  it- 
self in  various  parts  of  the  earth.  But  they  differ  greatly  in 
their  diffusive  nature  and  power  of  associating  with  different 
political  ideas.  Judaism  kept  the  descendants  of  Jacob  to- 
gether by  its  faith,  its  rites,  and  the  religious  centre  which  its 
rites  required,  but  has  kept  its  ground  in  the  world  as  much 
by  the  hardening  influence  of  persecution,  and  the  brotherly 
feeling  between  its  members,  as  by  its  own  vital  power. 
Mohammedanism  has  something  of  the  same  character.  It 
is  somewhat  diffusive  and  somewhat  capable  of  combining 
with  various  polities,  yet  has  had  an  inclination  towards  des- 
potical  government,  and  thrives  best  not  far  from  the  place 
where  it  had  its  origin,  and  where  its  pilgrims  turn  their  steps. 
Christianity,  throwing  off  the  fetters  of  place  by  its  sublime 
doctrines  of  a  universal  Father,  and  a  Saviour  for  all  mankind, 
can  subsist  under  every  form  of  government.  Overturning 
nothing,  it  transforms  everything.  Hence  its  infinite  rich- 
ness of  manifestation.  With  almost  no  philosophy,  it  gives 
birth  to  manifold  philosophies  and  theologies.  With  the 
simplest  possible  institutions,  it  can  enter  into  union  with  a 
great  variety  of  institutions.  With  a  certain  number  of  fi.xed 
moral  and  religious  verities,  it  gives  birth,  in  connection  with 
human  reason,  to  a  large  number  of  sects,  which,  as  men  are, 
have  been  unable  to  subsist  side  by  side  in  peace.  These 
sects  are  multiplied  by  the  claim  of  possessing  the  only  true 
Christian  faith  or  institutions.  Thus,  under  Christianity,  the 
problems  which  the  state  has  to  solve,  according  to  the 
principles  on  which  states  have  acted,  have  become  more 
com[)licatcd  than  those  of  any  other  religion,  owing  to  the 
freencss  of  its  development. 


442 


POLITICAL  SCIENCE. 


There  is  another  point  in  which  the  monotheistic  rehgions 
differ  from  others,  and  in  which  Christianity  stands  foremost 
among  them  ;  it  is  the  profound  conviction,  which  those  have 
who  receive  them,  of  their  being  true  revelations.  They 
claimed  to  be  true,  and  they  satisfied  believers  in  them  in 
regard  to  their  relations  to  God  and  the  universe.  Judaism 
was  introductory  and  propaedeutic  ;  Mohammedanism  bor- 
rowed from  it,  with  some  adaptations  and  variations.  But 
Christianity  professes  to  rest  on  a  historical  basis  vouched  for 
by  original  witnesses,  and  to  be  the  final  word  from  heaven 
concerning  sin,  redemption,  a  perfect  rule  of  life  and  a  life 
hereafter.  Being  intensely  moral  by  its  hold  on  the  con- 
science, it  leads  men  to  withstand  all  wrong  laws,  to  oppose 
institutions  that  are  opposed  to  its  spirit,  and  with  equal 
firmness  to  contend  for  whatever  is  true  or  believed  to  be  true, 
and  to  accept  of  death  rather  than  be  disloyal  to  truth. 
Thus  Christians  may  come  into  contact  with  state  law,  and 
either  persecution  must  arise  or  law  be  modified.  But  beyond 
this  Christianity  has  been  exposed  to  various  corruptions  in 
outward  form  or  in  doctrine,  and  the  essential  truth  has  carried 
over  into  the  form  or  into  the  unessential  doctrine  the  sanc- 
tity and  divine  authority  of  revelation,  so  that  sects  arising 
within  this  simple  religion  have  claimed  exclusive  right  to 
represent  it  in  a  given  age  or  country.  Thus,  an  outward  in- 
stitution, especially  if  intended  to  secure  the  unity  of  the 
Christian  religion,  claims  exclusive  right  to  exist,  and  by  its 
influence  on  the  state  seeks  to  destroy  all  others.  There  are 
indeed  a  few  phenomena  like  this  in  the  history  of  other 
religions  ;  thus,  Brahmanism  expelled  Buddhism  from  India 
in  an  immense  conflict ;  the  traditions  produced  divisions  in 
Judaism,  the  Sonnites  and  Shiites  break  Islamism  in  twain  ; 
but  the  phenomenon  is  of  more  frequent  recurrence  within 
the  Christian  pale,  because  it  quickens  thought  into  new  vigor, 
and  makes  the  conscience  more  imperial  than  any  other  reli- 
gion. For  these  and  other  reasons  the  relations  of  states  to 
religion,  the  encroachments  of  religion  on  states,  the  diffi- 
culties of  rival  sects  with  each  other  and  the  law,  have 


THE  STATE'S  RELATIONS  TO  RELIGION. 


443 


been  complicated  and  destructive  of  political  and  of  social 
peace. 

Yet  again,  most  religions  have  found  it  necessary  to  hold 
property  for  the  various  expenses  of  worship  and  the  sup- 
port of  priests.  Among  the  Jews  this  had  been  the  practice, 
and  it  was  natural  that  Christianity,  which  is  built  on  Judaism, 
should  follow  it.  Acting  on  a  purely  voluntary  system  at 
first,  while  as  yet  not  acknowledged  by  the  state,  Christianity, 
when  it  became  a  lawful  religion,  adopted  the  existing  usage 
of  accepting  property  bequeathed  or  otherwise  given  for  the 
support  of  its  religion  and  its  officers,  as  well  as  for  various 
charitable  purposes  ;  which  property  was  held  by  the  bishop 
of  the  diocese,  for  the  most  part,  as  the  representative  of  the 
church.  Thus  everywhere  large  properties  came  into  eccle- 
siastical hands.  ^Moreover,  the  bishops,  or  the  heads  of  mon- 
asteries, who  controlled  the  great  property  of  the  monasteries 
independently  of  the  bishop,  became  holders  of  land  by  a 
feudal  tenure,  and  thus  were  invested  with  jurisdiction,  and 
assumed  (in  person  or  by  a  vicar),  all  the  obligations  of 
feudal  service.  Add  to  this  that  lands  were  devoted  all  over 
Europe  to  the  support  of  parish  priests,  on  condition,  more 
or  less,  that  the  owner  who  had  thus  given  his  land  for  pious 
purposes  should  have  the  right  of  nominating  the  incumbent, 
subject  to  ecclesiastical  law.  And  in  addition  to  all  this, 
when,  amid  the  confusions  of  the  decaying  empire.  Christian 
law  and  the  bishops  remained  as  the  chief  bulwark  of  society 
in  the  towns,  the  latter  gradually  gained  jurisdiction  in  all  the 
parts  of  law  where  jus,  morals  and  religion  have  common 
territory,  such  as  marriage,  divorce,  legitimacy,  and  even 
wills.  From  this  source  a  large  and  most  important  branch 
of  law  came  into  their  hands,  which  the  states  did  not  re- 
cover until  the  modern  period.  The  clergy  also  acquired  to 
some  extent  the  right  of  being  judged  by  a  different  law 
from  that  of  the  other  members  of  the  political  body,  or  at 
least  by  judges  of  their  own.  There  arose  a  voluminous  cor- 
pus of  canon  law,  partly  founded  on  the  Hiblc,  partly  on  the 
civil  law.    Closely  joined  to  this  system  and  the  very  soul  of  it, 


444 


POLITICAL  SCIENCE, 


was  the  doctrine  that  the  bishop  of  Rome,  as  the  representa- 
tive of  unity  in  the  church,  and  the  interpreter  of  its  doctrines, 
was  the  supreme  arbiter,  with  power  to  issue  orders  enforced 
by  church  censures,  whenever  morahty  and  civil  right  seemed 
to  conflict.  In  these  ways,  it  is  plain,  the  power  in  the  church 
and  the  power  in  the  state  could  not  fail  to  come  into  collision. 
The  whole  of  the  middle  ages  is  filled  with  the  manifestations 
of  this  strife.  The  relations  of  the  parties  were  most  com- 
plicated and  difficult.  The  claims  which  the  mediaeval  church 
made,  though  held  in  abeyance,  have  never  been  wholly 
abandoned  by  the  Romish  church.  When  the  Protestant 
churches  were  formed,  they  inherited  some  of  the  questions 
growing  out  of  old  relations  and  old  opinions,  and  these  are 
still  to  a  certain  extent  unsettled. 

§  252. 

We  return  to  the  division  of  religions  which  was  given 
Relations  of  state  abovc,  and  proposc  to  consider  first  the  rela- 
thei7:ands,  wherelt  tions  of  rcHgion  to  the  state  in  the  lands  where 
powei^."*  corporate  j^^^  amalgamation  with  the  body  politic, 
and  little  corporate  or  direct  power.  In  polytheistic  coun- 
tries, the  exclusiveness  of  a  particular  kind  of  worship  could 
not  well  go  beyond  the  old  possession  of  special  shrines,  and 
of  lands  given  to  temples  for  the  worship  of  certain  gods, 
the  established  public  rites,  and  the  traditional  worship  and 
shrines  of  the  clan  or  of  other  subordinate  divisions  of  the 
people.  Where  a  form  of  worship  had  a  footing,  it  was  pro- 
tected by  the  state  ;  but  a  new  and  imported  religion  had  no 
Especially  at  r'ghts  of  its  own.  At  Athcns,  however,  there 
Athens  and  Rome.  ^  Considerable  toleration  of  novel  divinities, 
unless  danger  was  apprehended  from  secret  unions  or  myste- 
ries. At  Rome,  religious  police,  if  it  may  be  so  called,  was 
much  stricter;  and  the  people,  being  a  religious — even  a 
superstitious  people,  the  necessity  of  honoring  the  gods,  the 
fear  of  their  displeasure,  had  great  influence  until  the  decay 
of  the  republic.  Among  the  points  most  worthy  of  notice, 
we  mention  first,  that  worship  was  established  in  this  sense, 


THE  state's  relations  TO  RELIGION.  445 


that  norraally  the  divinities  had  a  right  to  be  publicly  honored, 
a  right  which  was  derived  from  old  usage  or  positive  law.  A 
number  of  Greek  divinities  and  the  Magna  Mater  of  Asia 
Minor  were  introduced  by  law  in  historic  times  ;  nor  was  it  un- 
til the  decline  of  the  republic,  when  strangers  crowded  into 
Rome,  that  the  Egyptian  Isis  and  Serapis,  the  Persian  Mith- 
ras, the  virgo  cxlcstis  of  Carthage,  and  the  Sun,  began,  with- 
out law,  to  become  naturalized  in  the  older  Roman  dominions. 
The  principle  in  regard  to  new  gods  is  expressed  by  Cicero  in 
the  prohibition  of  separate  worship,  and  of  the  private  cidtus 
of  new  or  foreign  divinities,  unless  publicly  sanctioned  (de  leg., 
ii.,  8,  19).  Julius  Paulus  again  (Sentent.,  v.,  21),  in  the  time 
of  Alexander  Severus,  decides  that  "  those  who  introduce 
novel  and  as  yet  unknown  religions,  by  which  the  minds  of 
men  are  stirred  up,  are  to  be  exiled,  if  of  respectable  stand- 
ing, and  capitally  punished  if  of  humbler  condition."  At  a 
much  earlier  date,  about  425  B.C.,  in  a  time  of  drought  and 
pestilence,  when,  as  Livy  says,  in  all  the  streets  and  chapels 
foreign  expiations  were  practised,  the  sediles  were  ordered, 
perhaps  for  the  first  time,  to  sec  that  no  gods  should  be  wor- 
shipped and  no  rites  employed  but  Roman  ones  (iv.,  30).  Still 
more  remarkable  is  the  same  writer's  account  (.\xv. ,  l)  of  pub- 
lic and  private  rites  afterwards  brought  in  by  soothsayers  and 
sacrificers,  and  of  women  in  crowds,  even  in  the  forum  and  on 
the  capitol,  making  sacrifices  and  praying  in  ways  unknown 
before.  The  aediles  are  blamed  for  this,  and  a  special  commis- 
sion was  given  to  the  city  prJEtor  to  repress  it.  This  occurred 
during  the  war  with  Hannibal,  and  is  one  of  many  illustrations 
of  the  tendency  of  outlandish  rites  to  come,  like  new  medicines, 
into  pagan  countries  in  their  times  of  pestilence  and  calamity. 

The  forms  of  worship,  also,  especially  of  public,  were 
watched  over  by  pagan  communities.  No  one  seems  to  have 
been  allowed  to  innovate  in  this  respect,  as  the  way  of 
approach  to  the  gods  was  thought  to  have  had  their  sanction. 
In  Greece  the  oracle  at  Delphi  served  as  a  kind  of  regulator 
in  regard  to  religious  criltus,  both  as  to  the  objects  and  the 
forms.    New  methods  of  worship,  especially  of  a  secret  kind, 


446 


POLITICAL  SCIENCE. 


which  partook  of  the  nature  of  mysteries,  were  suspected. 
The  energetic  action  which  the  Roman  senate  took  in  relation 
to  the  Bacchanaha,  on  their  appearance  at  and  around  Rome 
in  A.U.  568  (B.C.  186),  was  dictated  and  justified  bytheimmo- 
rahties  of  night  meetings  where  both  sexes  were  present,  but 
it  was  of  a  piece  with  the  whole  system.  Here,  again,  the 
Athenians  were  more  careless  than  the  Romans,  as  the  re- 
peated mention  of  foreign  rites,  of  secret  orgies  in  honor  of 
foreign  gods  not  publicly  recognized,  testify.  In  other  parts 
of  Greece  less  visited  by  strangers,  there  may  have  been  more 
strictness  in  keeping  out  foreign  rites. 

The  gods,  as  beings  protecting  the  state  and  acknowledged 
there,  had  their  rights  and  could  not  be  offended  with  impu- 
nity. The  due  services  must  be  performed  towards  them  by 
the  public  priests.  Their  temples  and  everything  deposited 
in  them  must  be  treated  as  sacred  ;  no  impure  thing  like 
magic  was  allowed  to  attend  religious  ceremonies  ;  the  mys- 
teries must  not  be  profaned.*  As  faith  in  the  existence  and 
providence  of  the  gods  was  considered  to  be  necessary  both 
for  public  morals  and  to  secure  their  good  will  towards  the 
state,  atheists  and  scoffers  might  be  punished  as  doing  the 
state  an  injury,  and  as  offending  against  the  protecting  dei- 
ties. I  have  not  found  any  instance  where  atheism  or  blas- 
phemy was  visited  with  penalties  at  Rome,  at  least  before  the 
settlement  of  Jews  and  Christians  there,  of  which  we  shall 
speak  by  itself.  Such  things  seem  to  have  been  rare  until 
the  Romans  learned  them  from  Greece  ;  and  then  unbelief 
grew  so  fast  in  the  upper  classes  that  it  was  no  time  to  keep 
them  down  by  law.  But  sacrilege,  the  disclosure  of  religious 
secrets,  and  the  violation  of  sepulchres,  seem  all  to  have  been 
punishable  by  law.  The  first  of  these  crimes  was  regarded  as 
a  very  high  one,  but  it  is  doubtful  whether  it  did  not  include 
the  stealing  of  private  money  deposited  in  a  temple. t  At 
Athens  the  crime  of  aae^eca  comprised  a  great  variety  of 


*  Comp.  Schoem.,  Or.  Alt.,  ii.,  140  and  onw. 
f  See  Rein,  Criminalr.  d.  Roni.,  p.  694,  note. 


THE  state's  relations  TO  RELioiOX. 


447 


offences,  among  which  may  be  named  atheism,  denial  of  a 
providence  of  the  gods,  ridicule  of  the  divinities  acknowledged 
by  the  state,  profanation,  neglect  and  derision  of  the  sacred 
festivals,  offerings,  and  games,  departure  from  usage  in  mak- 
ing offerings,  injuries  done  to  altars  and  temples,  and  viola- 
tion of  the  right  of  asylum  belonging  to  them,  profanation  of 
graves  and  neglect  of  duties  towards  the  dead,  scoffing  at 
mysteries  or  revealing  them  to  the  uninitiated,  rooting  up  the 
sacred  olive  trees,  intercourse  with  persons  defiled  by  homi- 
cide, and  the  entrance  of  a  murderer  into  a  holy  place.*  An- 
other crime  against  religion,  sacrilege  {UpoavXia),  seems  to 
have  been  viewed  in  two  lights,  as  a  desecration  of  a  temple, 
or  as  the  abstraction  of  sacred  property.  In  the  worst  form 
it  was  punished  with  death,  confiscation  of  property,  and  pro- 
hibition of  burial  in  Attic  soil.  The  vague  crime  of  impiety 
was  visited  with  no  absolute  penalty,  but  the  accuser  and  the 
court  might  estimate  it  as  high  as  loss  of  life.  It  is  highly 
interesting  to  find  the  Athenians  punishing  opinions,  and  that 
accusations  were  made  against  many  of  the  philosophers. 
Thus,  besides  the  well-known  case  of  Socrates,  Anaxagoras  is 
said  to  have  been  prosecuted  for  teaching  that  the  sun,  then 
still  regarded  as  a  living  divinity,  was  but  a  fiery  mass  of  stone. 
Protagoras,  Aristotle,  Theodorus  Athens,  and  others  are 
said  to  have  sustained  similar  prosecutions  for  impiety.  And 
it  is  remarkable  that,  with  this  censure  of  serious  opinion, 
great  license  was  allowed  to  the  comic  poets  of  putting  the 
gods  in  the  most  ridiculous  light,  and  even  of  introducing 
them  on  the  stage  in  the  most  censurable  and  immoral  parts 
of  the  national  mythology. 

Towards  the  end  of  the  Roman  republic,  Jews  began  to  fre- 
Laws against  Jews  Qucut  the  Capital,  and  soon  Christians  also  came 

and  Chnsuans.  ^^^^^^  ^  ^^.j^^        f^^^^  ^^^^^   COnfoundcd  witll  JcVVS. 

They  both  were  called,  in  popular  language,  through  the 
eastern  provinces,  atheists,  either  as  having  no  visible  object 
of  worship,  or  as  rejecting  the  gods  of  the  heathen  among 

*  These  are  enumerated  by  Meier  u.  Schoem..  .Att.  Proc,  pp.  300, 
301,  whose  words  I  have  for  the  most  part  translated. 


448 


POLITICAL  SCIENXE. 


whom  they  Hvcd.  Both  rehgions  were,  as  yet,  without  the 
protection  of  the  law,  and  the  adherents  of  both  were  spread 
through  the  empire.  Both,  by  their  exclusive  monotheism 
and  aversion  to  idolatry,  rebuked  and  called  forth  the  hatred 
of  the  populace  ;  while  the  meetings  of  the  Christians  at  the 
love-feasts  and  the  Lord's  supper  gave  occasion  to  malicious 
stories  of  grossly  sensual  practices  in  Secret.  The  Jews, 
moreover,  were  glad  to  divert  the  ill-will  of  the  populace 
against  themselves  by  joining  in  the  outcry  against  the  Chris- 
tians. Add  to  this  that  the  policy  of  Augustus  and  his  suc- 
cessor was  to  keep  out  foreign  religions,  strolling  astrologers 
from  the  east,  and  practisers  of  magic  as  much  as  possible. 
Tiberius,  it  is  said  by  Suetonius  (vit.  Tib.,  §  36),  "checked 
foreign  ceremonies,  both  ^Egyptian  and  Juda;an  rites  ;  the 
adherents  to  these  religions  being  forced  to  burn  their  super- 
stitious vestments  with  the  utensils  of  their  worship."  Jewish 
young  men  (at  Rome)  were  sent  as  soldiers  into  unhealthy 
provinces,  and  the  other  residents  of  the  same  nation  ^  he  sent 
out  of  the  city,  threatening  them  with  slavery  unless  they 
obeyed.  When  the  Christians  were  persecuted,  the  old  prac- 
tice of  forbidding  rcligiones  illicitce  seems  to  have  justified 
doing  this  at  first.  Afterwards,  from  the  well  known  letter  of 
Pliny  to  Trajan  (Epist. ,  x.,  97),  we  find  that  a  special  edict  had 
been  issued  against  hetcerice,  brotherhoods  or  unions,  so  called 
in  a  Greek-speaking  province,  and  answering  to  sodalitates, 
also  frowned  upon  at  Rome,  {ib.,  x.,  43.)  Thus  political  sus- 
picion must  have  been  one  ground  for  the  persecution  in 
Bithynia,  under  one  of  the  best  emperors.  A  little  before 
this  time  it  would  seem  as  \{  atheism  itself,  i.  e.,  Judaism,  in- 
cluding Christianity,  had  become  a  crime,  for  Dio  Cass,  tells 
us  (Ixvii.,  14)  that  under  Domitian,  A.D.  95,  the  death  of 
Flavins  Clemens,  then  consul,  and  the  banishment  of  his  wife 
Flavia  Domitilla,  were  procured  by  the  tyrant  "  on  the  charge 
of  atheism,  on  which  charge  many  others  were  condemned 

*  "  Reliquos  gentis  ejusdem  vel  similia  sectatos."  The'  last  words 
seem  to  refer  to  proselytes,  not  Jews,  but  of  similar  faith. 


THE  state's  relations  TO  RELIGION. 


449 


who  had  fallen  into  the  habits  of  the  Jews."  The  increasing 
bitterness  towards  the  Christians  was  due  mainly  to  their  in- 
crease of  numbers  and  the  dread  of  their  becoming  a  power  in 
the  state  ;  and  their  persecution  was  facilitated  by  the  hatred 
to  which  they  were  subject. 

Another  point  at  which  the  religions  of  the  heathen  touched 
the  laws  of  the  communities,  was  the  status  of  the  ministers 
of  public  worship.  In  Greece  the  priest  was  subordinate  to 
the  state,  whether  chosen  or  hereditary,  and  little  more  was 
done  by  the  law  than  to  protect  existing  usages.  At  Rome 
the  principal  colleges  of  priests  were  chosen  by  election  or  by 
cooptation.  The  pontifices,  especially  the  pontifex  maximus, 
may  be  said  to  have  been  the  inspectors-general  of  whatever 
took  place  in  the  public  worship. 

For  the  expenses  of  public  religion,  including  the  outlays 
for  building  and  repairing  temples,  the  games,  processions, 
and  public  sacrifices,  the  salaries  of  priests  and  of  other  reli- 
gious servants,  great  sums  of  money  were  required.  These 
came  at  Athens  from  the  public  treasury,  from  the  rents  of 
religious  property,  or,  it  may  be,  from  the  liberality  of  the 
rich.*  At  Rome  the  management  of  sacred  property,  as  the 
renting  of  land  belonging  to  the  gods,  was  in  the  hands  of  the 
censors.  It  is  remarkable  within  what  strict  limits  the  power 
of  acquiring  property  by  legacy  or  bequest  for  temple  uses 
was  kept  at  Rome.  No  god  can  be  made  an  heir,  says  Ulpian 
(frag,  xxii.,  6,  in  Huschke,  u.  s.,  p.  501),  except  those  whom 
it  has  been  allowed  by  decree  of  the  senate  or  constitutions 
of  the  princes  to  make  such.  He  then  names  eight  gods 
through  the  empire  that  had  in  his  time  the  privilege,  only 
one  of  whom,  Jupiter  Tarpeius,  had  his  temple  at  Rome. 
The  property  of  the  gods  was  devoted  to  the  objects  of  ciiltiis, 
and  is  to  be  distinguished  from  the  money  devoted  by  the 
community  to  matters  connected  with  religion,  as  the  wages 
of  the  attendants  of  the  priests,  the  salaries  of  the  vestals  and 
of  priests  who  received  salaries.    These  public  expenses  were 

*  See  Boeckh,  Staatsh.,  ii.,  12,  and  for  Rome,  Mommscii  in  the  now 
Handb.  d.  Riiin.  Alterth.,  ii.,  i,  58-69. 
VOL.  II.— 29 


450 


POLITICAL  SCIENXE. 


eked  out  in  the  imperial  times  by  admission  fees  into  the  tem- 
ples, to  the  altars,  etc.  Every  priest  or  college  of  priests 
seems  to  have  had  a  private  treasury.  On  election  into  one 
of  the  honorable  colleges  of  priests  wealthy  men  sometimes 
paid  great  contributions. 

It  may  be  said  in  summing  up,  that  the  relations  between 
religion  and  the  state  brought  religion  in  the  most  cultivated 
nations  of  heathenism  completely  under  state  control,  that 
there  was  an  inspection  over  all  religious  rites,  public  or  pri- 
vate, and  that  every  new  worship  needed  state  authority  for  its 
celebration  if  it  would  escape  the  penalties  of  the  law  ;  and 
that,  notwithstanding  the  absence  of  definite  religious  views 
and  of  instruction  respecting  the  divinities  to  be  worshipped, 
public  rejection  of  the  gods  of  the  country  was  a  criminal  act, 
and  that  mere  opinion  such  as  atheism  was  to  some  degree 
visited  with  penalties. 

If  we  were  to  treat  our  subject  on  a  larger  scale,  various 
shades  of  practice  in  regard  to  foreign  religions  and  in  othfcr 
respects  would  appear  in  the  usages  of  other  countries. 
Thus,  China  is  perhaps  the  most  tolerant,  and  has  the  most 
economical  state  religion  of  all  the  nations.  The  emperor  is 
the  head,  the  intermediary  between  the  people  and  heaven, 
to  whom  it  pertains  to  offer  to  heaven  the  great  annual  sacri- 
fice. As  for  the  rest,  there  are  connected  with  the  religion  no 
temples,  priests,  nor  festivals.  Toleration  is  due  to  indift'er- 
ence.  The  Tao  doctrine,  and  Buddhism,  which  is  widespread 
among  the  people,  are  only  endured,  if  we  are  not  deceived, 
without  having  any  legal  standing ;  and  the  latter  has  been 
at  times  persecuted.  So  Christianity,  if  it  should  spread, 
would  be  exposed,  as  the  religion  of  powerful  nations,  to 
persecution,  in  case  the  suspicion  of  the  government  should 
be  excited. 

§  253. 

2.  In  the  religions  of  caste,  the  ministers  of  religion  occupy 
Religion  and  state  their  placcs  by  a  law  of  hereditary  descent,  and 
in  lands  of  caste.     their  rights  are  so  imbedded  in  the  state  that 
both  must  exist  or  perish  together.    They  stood  in  India  at 


THE  state's  relations  TO  RELIGION.  45 1 

the  head  of  the  castes,  with  no  other  power  than  that  which 
the  religion  and  faith  in  it  gave  them,  acknowledged  by  the 
warrior  caste  in  whose  hands  was  all  the  force  of  society  as 
superiors,  yet  forming  a  league  with  them  to  govern  the  social 
system.  The  Kshatriyas,  say  the  laws  of  Manu,  cannot 
prosper  without  the  Brahmans  ;  the  Brahmans  cannot  rise 
without  the  Kshatriyas  ;  united,  the  priestly  and  military 
classes  rise  in  this  world  and  in  the  other.  (Laws  of  Manu, 
ix.,  322.)  These  laws  abound  in  exalting  the  Brahmans,  in 
giving  them  privileges  above  the  military  class  from  whom  the 
kings  proceeded,  in  regarding  them,  apart  from  their  religious 
functions,  to  be  deserving  of  the  highest  reverence.  "  In- 
structed or  ignorant,  a  Brahman  is  a  powerful  divinity,  just 
as  the  fire  consecrated  or  not  consecrated  is  a  powerful 
divinity."  "  Even  when  they  give  themselves  to  all  sorts  of 
mean  employments  they  ought  to  be  constantly  honored,  for 
they  have  in  them  something  eminently  divine."  (Ibid.,  ix., 
3^7>  319-)  As,  besides  this  innate  pre-eminence  of  birth, 
they  had  the  sacred  books  in  their  hands,  with  all  the  multi- 
tude of  religious  performances  necessary  to  prevent  the  effects 
of  ceremonial  uncleanncss  in  this  world  and  after  death,  as  in 
the  law  religion  and  political  duties  were  indissolubly  united, 
as  they  monopolized  philosophy,  speculation,  and  the  knowl- 
edge of  ascetic  discipline,  it  is  not  strange  that  they  could 
keep  their  control  in  India  for  thousands  of  years  and  through 
many  revolutions  of  society.  The  kings  do  not  seem  to  have 
been  specially  jealous  of  them,  but  an  alliance  subsisted  be- 
tween the  two  higher  classes  for  the  governmcut  of  the  two 
lower  and  more  numerous.  Their  position  under  the  laws 
made  them,  when  guilty  of  crime,  subject  to  lighter  punish- 
ment, and  subjected  others  who  injured  them  to  a  much 
heavier  condemnation  than  if  they  had  injured  others.  The 
king  is  warned  to  avoid  irritating  Brahmans  by  taking  their 
goods,  "  for  once  irritated  they  would  destroy  him  on  the 
spot  with  his  army  and  equipage  by  their  imprecations  and 
magic  sacrifices."  (Ibid.,  ix.,  313.) 

Much  the  same  may  be  said  of  the  I'llgj  ptian  classes  as  of 


452 


POLITICAL  SCIENCE. 


those  in  India,  although  the  system  did  not  have  the  same 
cohesive  strength.  It  is  remarkable  also  that  the  Celts  in 
their  Druidical  system  were  on  the  same  path  which  the  eastern 
nations  followed.  "  The  Celtic  priesthood,"  says  Momm- 
sen  (Hist,  of  Rome,  iv.,  274,  Engl,  transl.),  "or  corporation 
of  the  Druids,  certainly  embraced  the  British  islands  and  all 
Gaul,  and  perhaps  also  other  Celtic  countries,  in  a  common 
religious-national  bond.  It  possessed  a  special  head  elected 
by  the  priests  themselves  ;  special  schools,  in  which  its  very 
comprehensive  tradition  was  transmitted  ;  special  privileges, 
particularly  exemption  from  taxation  and  military  service, 
which  every  class  respected  ;  annual  councils,  and  above  all, 
a  believing  people.  It  may  readily  be  conceived  that  such 
a  priesthood  attempted  to  usurp,  as  it  partially  did  usurp, 
the  secular  government ;  where  the  annual  monarchy  sub- 
sisted, it  conducted  the  elections  in  the  event  of  an  interreg- 
num ;  it  successfully  laid  claim  to  the  right  of  excluding  in- 
dividuals and  whole  communities  from  religious  and  also  from 
civil  society  ;  it  was  careful  to  draw  to  itself  the  most  impor- 
tant civil  causes,  especially  processes  as  to  boundaries  and  in- 
heritance ;  it  developed  an  extensive  priestly  criminal  juris- 
diction, which  was  co-ordinate  with  that  of  the  kings  and 
vergobrets  ;  *  it  even  claimed  the  right  of  deciding  on  war 
and  peace.  The  Gauls  were  not  far  removed  from  an  eccle- 
siastical state,  with  its  pope  and  councils,  its  immunities,  inter- 
dicts and  spiritual  courts,  only  this  ecclesiastical  state  did  not 
stand  aloof  from  the  nations,  but  was  on  the  contrary  pre- 
eminently national." 

§  254. 

3.  We  pass  on  to  consider  next  the  relations  between  reli- 

Religion  and  state  giou  and  the  statc  in  the  three  monotheistic  re- 
in t!ic  monotheistic  i  i_ 

religions.  Hgious,  which,  whilc  they  differ  much  between 

themselves,  have  much  also  in  common.  As  for  the  Jews, 
this  relation  is  by  no  means  explained  when  wc  call  their  gov- 

*  This  was  an  annual  magistrate  of  the  Acdui,  who  had  the  jus 
viice  ct  necis  in  his  hands.    (Cacs.,  de  bell.  Gall.,  i.,  16.) 


THE  state's  relations  TO  RELIGION. 


453 


ernment  a  theocracy,  for  a  theocracy  can  exist  both  where  reU- 
gion  and  the  state  are  distinct  and  mutual  chcclcs,  and  where 
they  are  blended  and  fused  together  (comp.  §  163).  There 
was,  in  their  system,  no  caste,  properly  so  called,  and  no  supe- 
riority of  the  priestly  tribe.  This,  indeed, owing  to  its  disper- 
sion through  the  land,  could  acquire  no  other  predominance 
in  state  affairs  than  its  intelligence  and  office  of  directing  all 
religious  services  would  give  it.  The  judges  seem  to  have 
been  in  part  Levites  or  priests,  and  in  part  elders  from  the 
other  tribes.  The  support  of  these  ministers  of  religion  came 
from  Levitical  towns  and  their  suburbs,  from  tithes,  and  por- 
tions of  victims  offered  in  sacrifice.  They  were  checked  and 
balanced  in  their  influence  by  the  prophets — a  body  repre- 
senting the  immediate,  as  opposed  to  the  statutory  will  of 
God,  and  who  might  belong  to  any  tribe  of  the  people.  As 
for  the  action  of  the  civil  power,  as  distinguished  from  the  ec- 
clesiastical, in  religious  matters  it  was  chiefly  confined  to  the 
punishment  of  offences  against  religion  as  laid  down  in  the 
Mosaic  laws,  such  as  idolatry,  witchcraft,  magic  arts  and 
blasphemy,  to  the  general  protection  of  religion  and  to  volun- 
tary munificence,  like  that  of  David  and  Solomon  in  establish- 
ing the  temple  worship.  Of  special  importance  for  binding 
the  people  together  was  the  rite  to  which  every  male  child 
was  subjected,  together  with  the  obligation  to  partake  in  the 
three  great  annual  festivals,  and,  in  other  ways,  to  acknowl- 
edge Jehovah.  By  these  associating  forces,  by  their  mono- 
theistic religion  with  its  universal  ideas,  by  their  history 
reaching  back  to  Egypt  and  marking  them  out  as  the  people 
of  Jehovah,  they  kept  up  their  national  feeling  amid  and  after 
many  lapses.  They  deserve  the  name  of  a  church — which  is 
often  given  loosely  where  it  has  no  fit  application,  as  to  Brah- 
minism,  and  even  to  the  Chinese  national  religion.*  And 
the  combining  principles  of  Judaism  are  so  strong,  especially 
the  possession  of  such  a  book  as  the  Old  Testament  with  its 
universal  ideas,  that  in  their  dispersion  over  the  world,  when 

*  riiiis  Wuttkc,  in  his  Gesch.  d.  Heidenthums  (part  2,  §  113), 
uses  this  word. 


454 


POLITICAL  SCIENCE. 


a  great  part  of  their  worship  necessarily  ceased  on  account 
of  its  local  character,  they  have  kept  up  their  national  feeling 
and  worship  until  the  present  day. 

If,  in  the  Jewish  religion,  state  and  church  were  closely 
united,  much  more  was  this  the  case,  in  some  points,  among 
the  Mohammedans.  The  head  of  the  state  here  was  both 
Caliph  and  supreme  Imam,  both  civil  and  ecclesiastical  suc- 
cessor to  Mohammed.  And  if  it  had  been  possible  to  pre- 
serve civil  unity  for  ages,  such  concentration  of  power,  with 
the  help  of  a  fiery  zeal  urging  on  to  war  against  unbelievers, 
might  have  endangered  all  Europe  as  weU  as  Asia.  But  the 
dispute  as  to  who  ought  to  be  the  successor  after  the  assassi- 
nation of  Othman  (a.D.  655),  with  the  subsequent  murder  of 
Ali  and  his  son  Husein,  led  to  a  permanent  division  between 
the  adherents  of  the  house  of  Ali,  descendants  of  the  prophet, 
and  the  successful  party  of  Moawiyah.  The  Shiites,  All's 
party,  in  the  course  of  time  broached  the  most  extravagant 
ideas  respecting  the  rights  of  the  Imam  belonging  to  Moham- 
med's line  ;  he  was  appointed  by  God  ;  blind  obedience  was 
due  to  him,  whatever  might  be  the  character  of  his  commands  ; 
he  was  almost  a  supernatural  being.  This  union  of  temporal 
and  spiritual  power,  checked  by  heretical  sects  dividing  the 
empire,  by  the  fanaticism  of  the  dervishes,  by  the  corporation 
of  the  Ulemas,  having  a  leading  voice  in-religion,  science,  law, 
and  education,  and  through  their  explanations  of  the  Koran, 
is  the  all-embracing  principle  of  Mohammedan  institutions. 
The  religion  has  nothing  in  it  to  kindle  love,  appealing  as  it 
does  cliicfly  to  the  greatness  of  God  ;  but  its  simple  rites,  with 
its  monotheism,  its  faith  in  Mohammed  and  the  Koran,  give 
it  an  existence  independent  of  the  state,  so  that  when  simply 
tolerated  it  can  manage  to  live.  Towards  idolatry,  Islam  is 
intolerant,  and  has  no  scruple  to  root  it  out  by  the  sabre  ; 
but,  having  the  same  faith  in  one  God  with  Jews  and  Chris- 
tians, holding  Moses  to  be  a  prophet  and  Christ  higher  than 
a  prophet,  it  finds  no  difficulty  in  allowing  the  monotheistic 
part  of  its  subjects  to  live  in  the  enjoyment  of  their  religions 
under  its  sway. 


THE  state's  relations  TO  RELIGION, 


455 


We  now  come  to  Christianity,  which,  at  its  origin  and  long 
State  and  Chris-  aftcrwards,  was  opposed  by  the  might  of  the 

ian  religion  at  first.     ^^^^^^  .  f^^         Ch^ist   and   thc  apOStlcS 

were  concerned,  was  never  conceived  of  as  needing  the  as- 
sistance of  the  state  for  its  maintenance  or  propagation. 
Being  built  upon  two  simple  rites,  one  of  which  is  merely  an 
expression  of  faith  in  a  divine  Redeemer,  having  thrown  off 
all  that  was  national  or  exclusive  in  Judaism,  and  bringing 
precious  promises  and  supports  to  the  soul  of  man,  it  was 
capable  of  spreading  on  every  side,  of  attaining  to  the  rank 
of  a  universal  religion,  if  only  tolerated,  or  even  not  rooted 
out  by  persecution.  Its  peculiar  truths  were  few  in  number, 
and  yet  of  such  breadth  and  vastness  that  speculation  in  dif- 
ferent conditions  of  human  thought  could  reduce  them  to  no 
one  philosophical  form  ;  hence,  as  we  have  said  already,  con- 
flicting opinions  arose,  causing  divisions  in  the  Christian  body 
between  the  orthodox  and  the  heterodox.  Its  principles  of 
association  also  were  in  the  times  of  the  apostles  exceed- 
ingly simple  ;  all  Christians  were  felt  to  be  one  in  Christ, 
yet,  by  a  free  development,  it  had  grown,  before  it  was  toler- 
ated in  the  Roman  empire,  into  a  religion  with  orders  of  clergy 
and  the  beginnings  of  an  outward  union  between  different  parts 
of  the  world.  As  questions  of  church  order,  like  questions 
of  doctrine,  could  be  variously  apprehended,  here  again  there 
was  room  for  discussion  ;  but  in  the  early  ages  these  were  in 
the  background,  the  tendency  was  towards  outward  unity 
under  one  head,  only  that  as  one  body  of  churches  separated 
on  dogmatic  or  other  grounds  from  another,  this  outward 
unity  was  dissolved.  Thus,  the  Greek,  Latin,  Nestorian, 
and  other  churches  arose,  and  in  the  Latin  the  power  of  thc 
bishop  of  Rome  became  predominant.  The  Reformation 
brought  on  other  separations  in  the  west,  and  the  question 
of  church  order  now  became  an  important  one,  some  con- 
tending that  a  definite  form  of  church  government  is  taught 
in  thc  New  Testament,  others  that  additions  not  inconsistent 
with  the  best  interests  of  religion  can  be  made  in  each  land. 
Thus,  among  protestants  several  kinds  of  church  government 


456 


POLITICAL  SCIENCE. 


appeared,  which  again  divided  Christians,  and  the  leading 
contentions  now  were  those  touching  the  right  of  separation. 
Again,  when  the  order  and  discipHne  of  churches  was  settled 
in  various  protestant  lands,  the  prince,  as  representing  the 
people,  took  the  lead  in  the  work.  New  establishments  came 
into  the  place  of  the  old,  and  dissenters,  objecting  perhaps  in 
nothing  save  points  of  order,  complained  that  they  were  not 
tolerated.  Hence,  discussions  arose  as  to  the  right  of  free 
worship,  to  the  relation  of  the  state  to  the  church,  and  this 
question  touching  the  outward  side  of  Christianity,  which  for 
some  ages  has  been  ever  rising  in  importance,  is  now  more 
interesting  than  any  other. 

This  brief  sketch  seems  to  show  the  richness  and  vitality 
of  the  Christian  religion.  Beyond  its  simple  elements  of  faith 
it  can  thrive  and  bless  the  world  under  various  modifications 
of  doctrine,  but  refuses  to  be  kept  in  any  strait-jacket  of 
theological  statements  that  will  continue  to  bind  through  the 
ages.  Its  simple  rites  have  been  taken  hold  of  and  interpre- 
ted on  the  slenderest  grounds  into  astounding  miracles.  Such 
is  its  largeness  of  heart,  that  it  can  edify  and  purify  many, 
whether  they  put  the  simple  or  the  mystical  interpretation  on 
the  sacraments.  It  subsists  under  any  form  of  church  order, 
and  beautiful  Christians  appear  in  the  society  of  Friends,  where 
there  is  no  church  order.  It  has  been  a  blessing  in  those  coun- 
tries where  it  is  governed  by  the  state,  as  well  as  where  it  is 
independent  of  the  state  ;  but  the  question  is  whether  it  would 
not  be  a  blessing  to  the  world  in  a  higher  degree,  if  discon- 
nected from  the  state — nay,  whether  both  church  and  state 
would  not  fulfil  their  ends  better,  if  they  discharged  their 
offices  without  partnership,  each  freely  acting  for  itself. 

From  what  has  been  said  of  the  attitude  of  the  pagan  Roman 
TrcatmcntofChris-  cmpcrors  towards  religion  before  Christianity 

tianity  by  Christian  ,        .       ,     .  .  .  r 

empcrors.  was  autlionzcd,  it  would  seem  quite  natural  for 

the  later  emperors,  after  Constantine's  profession  of  Chris- 
tianity, to  pursue  a  similar  policy  in  a  contrary  direction. 
If  the  Christians  had  been  punished  as  atheists,  or  as  holding 
unlawful  assemblies,  the  heathen  might,  when  the  Christian 


THE  state's  relations  TO  RELIGION. 


457 


state  was  strong  enough  to  do  it,  be  punished  for  idolatry, 
they  might  be  put  outside  of  the  protection  of  the  state,  their 
temple  lands  might  be  confiscated  ;  while,  on  the  contrary,  the 
churches  and  other  religious  institutions  might  be  allowed  to 
receive  endowments.  So,  again,  as  the  distinction  had  been 
made  between  lawful  and  unlawful  pagan  rites,  a  similar  dis- 
tinction might  now  be  made  between  orthodox  and  heretical 
Christians.  And  as  certain  bishoprics  had  political  influence, 
and  the  laity  had  a  voice  in  the  elections,  it  was  not  strange 
that  the  prince  or  sovereign,  especially  when  the  laity  dwin- 
dled in  intelligence  or  numbers,  should  acquire  the  right  of 
giving  or  withholding  a  confirmation  of  clerical  and  popular 
choice,  either  as  being  responsible  for  public  peace  and 
order ;  or  as  representing  the  laity  ;  or  as  following  the  ex- 
ample of  the  heathen  emperors  or  the  Jewish  kings  ;  or  as 
suzerains,  after  the  feudal  system  was  matured  and  embraced 
church  dignitaries  with  vast  possessions  and  jurisdiction. 
Nor  was  it  at  all  strange,  in  the  time  of  decay  and  reconstruc- 
tion, that  the  bishops  in  many  of  the  towns,  being  the  most 
enlightened  and  venerated  men  there,  should  acquire  political 
and  judicial  power,  first  in  certain  classes  of  cases  which  had 
to  do  with  religion  and  ecclesiastical  law,  then  as  heads  of  the 
towns,  as  the  officers  next  to  the  kings.  But,  to  pursue  this 
train  of  thought  no  further,  we  may  reduce  the  relations  of 
church  and  state  to  the  following  possible  forms  : 

§  255. 

First,  to  that  in  which  the  state  is  absorbed  in  the  church  or 
Theories  of  reia-  purc  thcocracy.    As  the  church  never  claimed 

tion    of  Christian 

chur.  h  to  state.  such  a  rclatlon  to  temporal  affairs,  but  always 
conceded  the  riglit  of  the  state  to  a  separate  existence,  we 
may  pass  over  this  relation  with  a  single  remark.  If  the 
church  and  state  could  have  been  united  under  one  head,  the 
strict  theocracy  thus  constituted  must  have  been  universal. 
There  could  have  been  no  Christian  states,  but  only  one  state 
reaching  as  far  as  Christianity  was  embraced.  But  the  words 
of  Christ,  "who  made  me  a  judge  or  a  divider  over  you," 


458 


POLITICAL  SCIENCE, 


and  "  ni}-  kingdom  is  not  of  this  world  ;  if  my  kingdom  were 
of  this  world,  then  would  my  servants  fight  that  I  should  not 
be  delivered  to  the  Jews,"  together  with  the  obvious  freedom 
of  soul  and  intelligent  thought  inspired  by  his  religion,  would 
have  come  into  opposition  to  the  central  despotism.  With 
these  opposing  forces  the  spirit  of  nationality  would  have 
made  common  cause,  and  the  despotism  or  the  religion  with 
the  national  feeling  would  have  been  overthrown.  We  may 
say,  then,  that  a  strict  Christian  theocracy,  an  absolute  con- 
solidation of  church  and  state  was  impossible. 

The  second  form  of  relation  between  the  two  is  that  of  co- 
existence in  a  condition  of  separation,  where,  however,  the 
church  power  claims  some  decided  pre-eminence  over  the 
state,  as  having  the  most  important  interests  of  men  in  its 
hands,  and  the  state  becomes  practically  dependent. 

Under  a  tliird  form  the  church  is  politically  dependent  on 
the  state,  as  an  establishment  by  law,  with  or  without  the 
toleration  of  dissenters. 

A  fonrth  form  appears  where  the  church  and  the  state  are 
in  great  measure  independent,  except  so  far  as  the  church, 
like  any  association,  is  protected  in  its  rights  by  the  courts 
and  laws,  or  the  rights  of  others  are  defended  from  its  ag- 
gressions. 

5.  A  French  writer,  Prof.  A.  Franck,*  proposes  another 
form,  in  which  the  state,  and  a  church  or  confession,  form  an 
alliance  or  concordat  ;  the  confession,  through  its  hierarchy 
at  least,  taking  the  oath  of  fidelity  to  the  state,  and  thus  be- 
coming pledged  against  receiving  from  abroad,  on  any  pretext 
or  in  any  form,  any  order  or  decree  contrary  to  the  laws  of 
the  coiintry,  and  for  which  permission  has  not  been  first  re- 
ceived ;  while  the  country  through  its  authorities  engages 
not  to  intermeddle  in  the  spiritual  affairs  of  the  confession, 
and  to  give  it  protection.  This  is  demanded  for  the  security 
of  the  state,  especially  against  new  or  unknown  religious  socie- 
ties, but  the  author  would  extend  the  plan  to  all  that  exist  in 

*  Philos.  du  droit  ecclesiastique,  part  iv.,  chap.  4.,  20-36. 


THE  state's  relations  TO  RELIGION. 


459 


the  country.  It  was  also  the  plan  adopted  by  Napoleon  I.,  in 
his  concordat  with  the  Pope,  and  in  the  arrangements,  in 
1806,  by  virtue  of  which  the  Jews  in  France  were  admitted 
to  new  privileges.  Of  this  plan  we  have  nothing  to  say,  save 
that  if  it  were  adopted,  the  confession  to  which  it  applied 
might  afterwards  be  altogether  independent  of  the  state  ;  so 
that  it  would  really  establish  no  new  relation,  but  only  pro- 
vide for  such  guarantees  upon  entering  into  its  relation  of  in- 
dependence, as  the  security  of  the  state  is  supposed  to  require. 

1.  While  the  ecclesiastical  state  existed,  that  is — in  order  to 
Church  m  the  States  sssign  to  it  a  prccise  period— from  1201,  when 
of  the  Church.  jj^^  emperor  Otho  IV.  conceded  by  oath  and 
charter  to  Innocent  III.  full  jurisdiction  over  large  Italian 
territories,  down  to  1 870,  when  the  papal  dominions  were 
merged  in  the  kingdom  of  Italy,*  the  popes  were  within  their 
principality  both  temporal  and  spiritual  princes  ;  and  they 
had  already  claimed,  and  in  part  exercised,  feudal  suzerainty 
elsewhere.  The  jurisdiction  over  a  territory,  where  they  could 
be  comparatively  undisturbed  by  the  emperors,  was  necessary 
— at  least,  was  thought  to  be  necessary,  for  independence  and 
for  ecclesiastical  sway  everywhere  alike  ;  but  this  gain  of  secu- 
lar principality  was  one  of  the  leading  causes  which  corrupted 
the  Roman  see.  No  succession  of  kings  in  any  European 
Christian  country  has  surpassed  in  worthlessness  the  popes 
from  Innocent  VIII.  to  Leo  X.,  inclusive  (1484-1521).  As 
for  the  rest,  the  sovereignty  over  the  patrimony  of  St.  Peter 
and  over  other  lands  acquired  afterwards  only  removed  obsta- 
cles ;  it  did  not  otherwise  affect  the  theory  of  church  power 
or  the  practice  under  it. 

2.  The  theory  of  church  power,  which  the  papal  church  has 
Papal  theory  of  rc-  always  distinctly  maintained,  since  it  emer<:cd 

Utiunsufchurch  anil  '  " 

•'"'o-  from  the  confusion  of  the  middle  ages,  and  even 

since  the  appearance  of  the  pseudo  Isidorian  decretals,  con- 

*  Comj).  Sugenlicini's  prize  essay,  die  Knsteli.  w.  .Ausbildunt;  des 
Kircliciistaat,  1854.  Siigenhciin  calls  the  transaction  of  Oliio  at 
Neiiss,  near  Cologne,  June  8,  1203,  the  magna  charta  of  the  eccle- 
siastical slate,  p.  134. 


46o 


POLITICAL  SCIENCE. 


templates  no  absolute  theocracy,  nor  absorption  of  the  state 
in  the  church.  It  was  admitted  that  the  powers  that  be  were 
ordained  of  God,  and  that  the  subject  could  not  be  released 
from  his  obedience,  unless  the  prince  committed  acts  of  gross 
immorality,  or  such  as  had  a  tendency  to  injure  the  church  of 
God.  The  unity  of  the  church  demanded  a  primate,  and  the 
primate  alone,  in  the  last  instance,  could  judge  what  was  or- 
thodox truth  and  what  was  immoral  or  of  injury  to  Christian- 
ity. He  gained  the  right  of  a  negative  in  elections  of  metro- 
politan bishops.,  and  this  right  by  degrees  was  extended  to 
other  church  offices.  He  had  a  control  in  regard  to  questions 
affecting  certain  family  rights,  and  a  dispensation  from  the 
rigid  rules  of  marriage  between  relatives.  There  grew  up  a 
body  of  canonical  law,  which  was  acknowledged  through 
Europe,  and  the  supreme  right  of  discipline  expressed  itself 
in  laws  and  interdicts,  and  even  in  absolving  subjects  from  obe- 
dience to  a  prince  who  would  not  submit  to  ecclesiastical  de- 
crees. Questions  relating  to  religious  property  were  brought 
under  his  jurisdiction ;  the  universities  were  in  a  degree 
licensed  and  watched  over  by  him.  Several  of  the  princes  in 
different  parts  of  Europe  entered  into  feudal  relations  to  him  ; 
thus,  John  of  England  did  homage  to  Innocent  III.,  who,  as 
thus  becoming  the  suzerain  of  England,  excommunicated  the 
barons  and  declared  the  magna  carta  void. 

With  all  this  power,  which  entered  into  every  department 
of  life,  the  papal  theory  admitted  a  certain  independence  of 
the  state  within  its  sphere.  Gregory  VII.  taught  that  the 
church  is  of  God,  while  the  state,  i.e.,  royal  and  imperial 
power,  is  needed  to  repress  human  wickedness.  "  Who  can 
doubt  that  the  priests  of  Christ  are  to  be  regarded  as  fathers 
and  teachers  (patres  et  magistros)  of  kings  and  princes,  and 
of  all  believers."  Innocent  III.  wrote  to  the  emperor  at 
Constantinople  that  of  the  two  great  lights  in  the  heavens  the 
sun  ruled  the  day  and  the  moon  the  night.  So,  in  the  firma- 
ment of  the  universal  church,  God  made  two  great  dignities, 
the  pontifical  and  the  regal  power.  "  But  that  which  presides 
over  the  day,  that  is,  over  things  spiritual,  is  the  greater  ;  that 


\ 


THE  state's  relations  TO  RELIGION.  46 1 

over  the  night,  that  is,  over  carnal  things,  is  the  less,"  the 
difference  between  the  two  powers  being  as  considerable  as 
that  between  sun  and  moon.  Still  further  he  says  that  "  the 
Lord  left  to  Peter  not  only  the  whole  church,  but  the  whole 
world  (totuin  scciiluvi),  to  be  governed."  Therefore,  not  only 
does  the  highest  and  last  decision  in  all  affairs  pertain  to  him, 
but  it  is  his  also  to  decide  who  shall  have  administration  in 
general.  No  acts  relating  to  the  church,  although  for  its  ad- 
vantage, are  valid,  he  further  says,  unless  sanctioned  by  the 
church.  Boniface  VIII.,  in  the  bull  "  iinam  satictani,"  goes 
even  farther.  Referring  to  the  two  swords  (Luke,  xxii.,  38  ), 
which  had  been  long  used  as  symbols  of  the  two  powers,  and 
of  which  St.  Bernard  speaks  as  placed,  the  one  in  the  pope's, 
the  other  in  the  emperor's  hands,  he  says  that  the  emperor's 
sword  is  to  be  drawn  only  {ad  niitiini  ct  paticntiatii  sacerdotis), 
according  to  the  will  and  permission  of  the  priest.  The  ad- 
mission of  this  dependence  of  the  state  on  the  church  is  nec- 
essary for  salvation.* 

Thus  the  theory  was  strained  to  its  utmost  at  the  very  time 
of  incipient  nationalization,  when  such  extravagance  could  not 
but  arouse  the  opposition  of  nations  and  kings.  It  has  never 
changed  since,  at  least  substantially,  but  policy  has  generally 
prevented  its  being  put  forth.  The  theory  grew,  and  if  Bon- 
iface could  have  succeeded,  it  might  have  grown  into  one  of 
absolute  supremacy.  Practically  it  places  the  two  powers  in 
the  world  side  by  side,  but  to  one  of  them  is  given  that  moral 
and  spiritual  control  which  allows  of  interference  in  civil  affairs 
on  such  numerous  and  various  occasions  that  the  other  has 
no  real  independence. 

Protestants  claim  for  the  individual  the  right  and  duty 
to  decide  for  himself  on  questions  of  duty  against  state  and 
church  both.  The  Roman  church  decides  for  itself  against 
the  state  on  questions  affecting  the  interests  of  the  church  or 
of  public  morals,  and  of  visiting  the  state  or  its  head  with  dc- 

*  Comj).  Jacobson,  Art.  Sfaat  w.  Kirclie,  in  Herzog's  iMicycI.,  vol. 
xxi.,  98-139,  and  Fricdberg,  definiuin  inter  occlesiam  et  civitatem  re- 
gundoruni  jiidicio,  etc.    (1861.)    Lib.  i.,  chap,  i.,  csp.  §  4. 


462 


POLITICAL  SCIENCE. 


privation  of  church  privileges.  And  it  also  claims  against  the 
individual  the  right  of  deciding  over  him,  on  questions  of 
conscience,  and  of  visiting  him  with  censure.  Protestant 
communions,  whose  discipline  is  strict,  really  take  the  same 
ground.  A  man  may  be  shut  out  from  church  privileges  by 
a  small  sect  for  "  using  a  little  wine,"  when  he  himself  feels 
no  scruples  about  so  doing.  It  might  be  thought  from  this 
that  all  religious  power  stands  and  must  stand  in  the  same 
relations  both  towards  state  and  individual.  But  while  this 
is  in  one  sense  true,  because  all  religious  associations  must 
establish  certain  rules  of  communion,  the  vast  and  wide 
power  of  the  Roman  church  centered  in  a  single  man,  who 
cannot  err,  if  he  speaks  ex  cathedra,  places  it  on  different 
grounds  from  the  protestant  sects  which  are  independent  of 
the  state,  and  much  more  on  different  ground  from  protestant 
established  churches  which  are  dependent. 

Against  this  theory  and  the  practice  under  it  a  large  part 
of  Christendom  revolted  at  the  reformation,  and  since  that 
event  the  papal  theory  has  been  for  the  most  part  practically 
suspended  in  the  Catholic  nations.  A  flagrant  instance  in 
which  the  old  claims  of  the  church  were  waived,  and  at 
which  Innocent  III.  would  have  been  horror-struck,  was  the 
concordat  between  Leo  X.  and  Francis  I.  (15 15),  by  which 
the  king  acquired  the  right  of  nominating  bishops,  and  the 
old  pragmatic  sanctions,  long  grievous  to  the  powers  at  Rome, 
were  abandoned.  The  precedent  of  this  departure  from  the 
strict  principles  of  the  Catholic  church  has  since  been  fol- 
lowed elsewhere. 

3.  We  pass  on  next  to  that  relation  of  the  church  to  the 
Church  subject  to  statcinwhich  it  has  little  or  no  independent 
power  and  is  subject  to  state  policy.  The  earli- 
est example  of  such  subjection  is  found  in  the  Byzantine  em- 
pire, and  it  goes  sometimes  under  the  name  of  Byzantinism. 
Here  mere  despotism  bf  the  emperor  ruled  in  both  spheres, 
disturbed  or  overthrown  sometimes  in  the  political  sphere  by 
successful  insurrections,  and  resisted  in  the  religious  sphere 
by  fanatical  monks  or  others  more  orthodox  than  the  empc- 


THE  state's  relations  TO  RELIGION.  463 


ror.  The  management  of  religious  affairs  in  Russia  pursues 
much  the  same  direction. 

When  the  protestant  nations  shook  off  the  yoke  of  the  Ro- 
man church,  the  reforms  were  brought  first  or  last  under 
the  control  of  the  prince  and  state.  The  symbols  of  belief 
were  determined  by  synods,  perhaps,  but  accepted  by  the 
governing  power.  The  religious  property  came  under  the  con- 
trol of  the  state,  and  that  which  had  belonged  to  monastic 
establishments,  being  incompatible  in  its  existing  uses  with 
the  reforms,  was  escheated  or  otherwise  disposed  of.  New 
sects  that  separated  from  the  reformation  were  not  endured. 
The  jus  refonnandi  was  held  to  reside  in  the  state,  or  in  its 
head  as  representing  it.  For  the  most  part,  the  methods  of 
supporting  parish  ministers  then  in  use  were  continued,  and 
the  people  had  but  little  voice  in  the  selection  of  their  minis- 
ters. The  dependence  of  church  upon  state  was  substantially 
the  same  in  protestant  Germany,  Switzerland,  England,  Hol- 
land, and  the  Scandinavian  nations. 

In  England,  especially,  the  established  church  is  the  crea- 
ture of  the  state,  and  the  same  power  that  created  can  destroy 
it,  as  is  shown  by  the  recent  disestablishment  of  the  English 
church  in  Ireland.  This  power,  exercised  by  the  king,  or  by 
the  king  in  parliament,  extends  to  all  doctrine,  discipline, 
worship,  the  tenure  of  ecclesiastical  offices,  the  toleration  of 
other  confessions  or  forms  of  church  order  outside  of  the 
establishment,  to  church  property,  to  the  performance  of 
ordinary  religious  acts.  Under  the  regime  of  the  old  church, 
convocations  met,  passed  canons,  and  granted  taxes.  After- 
wards they  met  for  form's  sake  and  adjourned.  The  bishops 
were  elected  by  the  deans  and  chapters,  subject  to  more  or 
less  control  of  the  pope.  Now  no  choice  is  made  but  on 
nomination  of  the  king.  There  was  no  right  of  worship 
granted  to  heretics  ;  Lollards  were  persecuted  to  the  death. 
The  same  right  of  suppressing  heresies  passed  over  to  the 
state  and  to  those  who  acted  under  it.  Puritans  were  perse- 
cuted, together  with  Catholics,  then  Socinians,  and  Quakers. 
The  act  of  supremacy  under  Elizabeth  shut  out  all  Catholics 


464 


POLITICAL  SCIENCE. 


from  civil  as  well  as  ecclesiastical  offices  by  requiring  an  oath 
that  the  queen  was  "  the  only  supreme  governor  of  the  realm 
and  all  other  her  highness's  dominions  and  countries,  as  well 
in  all  spiritual  and  ecclesiastical  things  or  causes,  as  in  tem- 
poral, and  that  no  foreign  prince,  person,  prelate,  etc.,  hath 
or  ought  to  have  any  jurisdiction  ....  ecclesiastical  or  spir- 
itual, within  this  realm."  The  act  of  uniformity  prohibited, 
under  penalty  of  a  fine  for  the  first  offence,  of  imprisonment 
for  a  year  for  the  second,  and  of  imprisonment  during  life  for 
the  third,  the  use  by  any  minister  of  any  but  the  established 
liturgy,  and  laid  a  fine  of  a  shilling  on  all  who  should  absent 
themselves  from  church  on  Sundays  and  holidays.*  The 
Star  Chamber,  an  illegal  and  arbitrary  court,  as  Hallam  calls 
it,  judged  in  religious  cases  without  being  bound  by  statute 
law,  until  it  fell  in  1641.  The  corporation  act  of  1661  enjoined 
that  all  magistrates  and  other  officers  in  the  corporate  towns 
who  should  thereafter  be  elected,  should  be  incapable  of  enter- 
ing on  their  duties  unless  they  had  received  the  sacrament 
within  a  year  before  their  election,  according  to  the  rites  of 
the  English  church.  The  test  act  of  1673  required  the  recep- 
tion of  the  sacrament  according  to  the  same  rites,  and  the 
rejection  of  transubstantiation,  before  any  temporal  office  of 
trust  could  be  enjoyed.  The  acts  against  conventicles  in  1664 
and  1665  were  particularly  severe  on  dissenters.  The  first 
forbade  presence  at  any  religious  meeting  where  at  least  five 
persons  besides  the  members  of  the  family  should  be  assem- 
bled, on  penalty,  to  all  persons  above  the  age  of  sixteen,  of 
three  months'  imprisonment  for  the  first  offence,  of  six  for  the 
second,  and  of  seven  years'  transportation  for  the  third,  after 
conviction  before  a  single  justice  of  the  peace.  The  other  re- 
quired persons  in  holy  orders  who  had  not  subscribed  the  act  of 
imiformity  (z.^-.,  those  who  gave  up  their  places  in  the  church 
after  the  passage  of  that  act  in  1660),  to  swear  that  taking  up 
arms  against  the  king  on  any  pretence  whatever  was  unlaw- 
ful, and  shut  out  any  one  who  should  refuse  such  an  oath  from 

*  Hallam,  Const.  Hist.,  i.,  chap.  3,  p.  153.  Compare  the  same 
work  for  the  other  acts  referred  to,  ii  ,  ch.  11,  pp.  472-476. 


THE  state's  relations  TO  RELIGION. 


465 


teaching  in  schools  or  coming  within  five  miles  of  any  city, 
corporate  town,  or  parHamentary  borough. 

We  make  no  comment  on  these  acts,  only  that  they  were 
in  part  a  revenge  for  the  overthrow  of  the  Episcopal  church 
by  the  Presbyterians  of  the  long  parliament,  who,  with  most 
other  Puritans,  had  the  current  view  of  the  right  and  even 
duty  of  the  state  to  set  up  and  defend  religion,  and  were 
deterred  by  no  scruple  from  passing  laws  against  heresy  and 
dissent.  By  the  toleration  act  of  I  William  and  Mary,  and 
by  subsequent  legislation,  most  of  which  belongs  to  the  last 
fifty  years,  all  this  is  done  away;  almost  entire  religious  liber- 
ty is  now  granted  to  all  forms  of  religious  profession,  Catholic 
and  Protestant,  and  parliament  is  open  to  Jews. 

The  English  colonies  in  America  which  were  first  planted, 
both  episcopal,  as  Virginia,  and  puritan  (independent  or  con- 
gregationalist),  as  Massachusetts,  Plymouth,  and  Connecticut, 
carried  the  views  of  the  mother  country,  and  of  the  Jewish 
scriptures  regarding  church  and  state,  into  their  institutions. 
In  all,  or  nearly  all  of  them,  laws  were  passed  providing  for 
the  support  of  the  clergy,  for  the  observance  of  Sunday,  and 
against  Quakers  and  other  heretics.  The  pilgrim  colonies, 
according  to  their  view  of  church  order,  prevented  the  legis- 
latures or  general  courts  from  having  any  direct  control  over 
the  proper  ecclesiastical  concerns  of  individual  churches. 
But  in  Connecticut  a  synod  set  up  in  1708  a  form  of  church 
order,  which  was  legally  enacted  by  the  assembly,  as  the  es- 
tablished church  order  in  the  colony.  There  were  then  no 
avowed  dissenters.  When  some  years  afterwards  the  dissent- 
ers appeared  and  founded  churches,  the  law  allowed  them, 
instead  of  paying  to  the  parish  churches  the  quota  for  sup- 
porting religion,  to  have  it  made  over  to  their  own  ministers. 
This  in  substance  was  the  condition  of  things  until  1S17,  when 
this  connection  of  religion  and  the  state  was  dissolved.  The 
progress  towards  complete  separation  of  the  two  powers  in 
Massachusetts  was  somewhat  similar.  The  Baptists  in  Rhode 
Island,  where  they  were  the  controlling  denomination,  repu- 
diated the  theory  of  the  political  establishment  of  religion. 
VOL.  11. — 30 


466 


POLITICAL  SCIENCE. 


In  the  protestant  states  of  Germany  the  attitude  of  the  civil 
power  towards  religion  was  much  the  same  as  in  England. 
The  maxim  was  ciijus  regio  ejus  rcligio.  In  fact,  all  the  states, 
Catholic  and  Protestant,  might  unite  in  this  rule,  as  the  for- 
mer would  do  nothing  contrary  to  the  fundamental  principles 
of  their  church.  The  lord  of  the  land,  by  the  peace  of  Augs- 
burg (1555),  was  obliged  to  grant  to  subjects  professing  a 
religion  different  from  his  own  the  liberty  of  emigrating  with- 
out loss  of  goods.  The  peace  of  Westphalia  (1642)  granted 
the  special  right  to  certain  protestant  nobles  and  the  town 
of  Breslau,  of  enjoying  protestant  worship  under  Austrian 
sway  ;  but  in  general  it  only  renewed  the  jus  reformandi  of 
the  older  treaty.  Those  subjects  of  a  religion  unlike  that  of 
their  prince,  who  had  no  public  or  domestic  right  of  worship 
in  1624,  or  who  should  change  their  religion  after  the  peace, 
had  liberty  of  conscience  and  the  civil  advantages  of  other 
citizens  ;  but  their  rights  of  worship  were  very  limited,  and 
they  might  be  compelled  to  emigrate  by  their  sovereign. 
The  last  instance  of  this  kind,  we  believe,  occurred  in  173 1, 
when  thirty  thousand  members  of  protestant  communities 
were  driven  out  of  Salzburg  by  the  prince-bishop  of  that 
territory,  on  the  ground  that  they  could  not  show  that  their 
religious  rights  extended  back  beyond  the  year  1624,  the 
normal  year  fixed  by  the  peace  of  Westphalia. 

The  Scottish  kirk  has  had  a  theory  of  its  relations  towards 
Theory  of  church  the  statc  Separating  it  in  a  degree  from  other 

.ind    state    in  the 

Scottish  kirk.  Protestant  churches  and  approachmg  to  that 
of  the  Catholic  church.  The  great  points  of  the  theory  are 
that  the  church  is  constituted  by  Christ ;  that  it  is  a  denial 
of  his  headship  to  maintain  that  the  church  can  be  instituted 
by  the  civil  power  ;  that  it  is  therefore  an  assumption  of  the 
rights  of  Christ  when  a  government  undertakes  to  regulate 
the  internal  affairs  of  a  church,  and  thus  an  assumption  and 
wrong  done  to  the  church  when  a  lay  patron  exercises  the 
right  of  nominating  and  appointing  a  minister  in  a  parish — a 
right  which  takes  away  from  the  church  members  and  the 
church  authorities  their  just  power.    These  principles,  and 


THE  state's  relations  TO  RELIGION.  467 


especially  hostility  to  patronage,  to  which,  however,  the  estab- 
lished kirk  has  submitted,  have  been  continually  cropping  out 
and  producing  secessions  from  the  established  church,  until 
the  Free  Church  of  Scotland  arose  in  1843.  If  the  state  had 
granted  to  the  kirk  complete  autonomy,  and  protected  it  in 
all  its  interests,  making  it  the  exclusive  church  of  the  country, 
putting  down  all  dissent  and  abolishing  lay  patronage,  this 
and  this  only  would  have  satisfied  the  claims  of  the  stricter 
Presbyterians.  The  theory  is  based  on  the  jus  divinuni  of 
Presbyterianism,  and  on  the  true  principle  that  Christ  is  the 
head  of  his  church,  and  it  derived  practical  strength  as  well 
from  the  attempts  of  the  Stuarts  to  force  a  church  order  on 
the  land  which  was  disliked,  as  from  the  abuses  of  the  system 
of  patronage  which  have  been  continued  since  the  removal  of 
other  grievances.  Had  there  been  an  entire  separation  of 
church  and  state,  the  kirk  might  have  avoided  numberless 
evils,  and  there  need  not  have  been  such  repeated  secessions 
from  its  pale. 

4.  We  have  now  reached  the  last  form  of  relation  between 
Theory  of  entire  church  and  statc,  that  of  complete  separation, 

separation  of  state 

aiij  church.  SO  far  as  separation  can  be  complete  where  a 

certain  degree  of  protection  is  required,  the  same  in  kind  and 
degree  that  would  be  necessary  for  maintaining  rights  in  any 
secular  sphere  of  action.  Ihis  is  the  plan  that  now  runs 
through  all  the  states  of  this  union.  No  other,  in  fact,  i.=  possi- 
ble as  long  as  all  confessions  are  equal  before  the  law,  as  long 
as  freedom  to  found  churches  is  open  to  all,  and  as  long  as 
the  conception  exists  that  a  church  is  a  spiritual  body,  acting 
on  the  state  only  by  the  moral  and  religious  forces  of  individ- 
ual persons.  The  churches,  therefore,  and  individual  congre- 
gations are  self-subsistent  ;  they  provide  for  their  own  sup- 
port ;  they  have  perfect  liberty  of  propagation  as  far  as  the 
state  is  concerned.  The  states  have  to  some  extent  limited, 
by  nineteenth  century  statutes  of  mortmain,  the  amount  of 
property  which  separate  congregations  may  hold,  or  may 
hold  without  paying  taxes  ;  and  there  is  a  demand  on  the 
part  of  many  that  church  property,  as  it  regards  its  taxable 


468 


POLITICAL  SCIENCE. 


quality,  shall  be  put  entirely  on  alevel  with  that  of  individuals. 
There  are  many  cases  in  which  churches  need  the  protection 
of  the  state,  and  where  they  come  as  plaintiffs  or  as  defend- 
ants before  the  courts.  Of  this  kind  are  contracts  with  minis- 
ters for  their  support,  the  exercise  of  clerical  power,  and  the 
question  whether  certain  proceedings  are  or  arc  not  in  accor- 
dance with  the  constitution  of  a  local  church  or  of  a  denomina- 
tion. All  church  property,  even  the  effects  of  church  censures, 
may  be  brought  before  civil  tribunals.  As  this  is  the  only 
plan  possible,  when  the  equality  of  all  bodies  of  worshippers 
and  the  perfect  freedom  of  worship  are  taken  into  considera- 
tion, so  thus  far  it  has  worked  well. 

There  is  a  plan  of  adjusting  the  relations  between  church 
and  state,  in  some  points  resembling  this,  which  has  been 
adopted  in  another  country  in  quite  modern  times.  Thus,  in 
the  charter  of  Louis  XVIII.  (1815),  it  is  said  that  every  one 
"shall  receive  for  his  religious  worship  the  same  protection. 
However,  the  Catholic  Apostolic  and  Roman  religion  is  the 
religion  of  the  state.  The  ministers  of  the  Catholic  Apos- 
tolic and  Roman  religion,  and  those  of  other  Christian  confes- 
sions alone  receive  stipends  from  the  public  treasury."  In 
the  charter  of  Louis  Philippe  (1830),  this  is  repeated,  except 
the  declaration  that  the  religion  of  the  state  is  Catholic.  In 
the  constitution  of  the  republic  (1848),  the  words  are  "  rfie 
ministers  of  the  religions  at  present  recognized  by  law,  as 
well  as  those  which  may  hereafter  be  recognized,  have  the 
right  to  receive  an  allowance  from  the  state." 

This  plan,  especially  in  its  last  form,  makes  a  difference 
between  the  licitce  and  illicitce  religiones,  like  the  legislation 
of  Rome  ;  and  also  implies  a  certain  sort  of  dependence  on 
the  state — equal,  but  equally  questionable— for  all  religious 
sects.  There  has  been  also  a  tyrannical  law,  dictated  by 
fear,  which  prescribes  that  no  association  of  more  than  twenty 
persons,  with  the  object  of  assembling  for  religious,  political, 
literary,  or  other  purposes,  can  be  formed  without  the  con- 
sent of  the  government,  and  under  conditions  which  the 
public    authority  shall  see  fit  to  impose  on  the  society. 


THE  state's  relations  TO  RELIGION. 


469 


(Code  penal,  Art.  291.)  This  law  has  heretofore  placed 
tyrannical  powers  of  repression  and  restriction  in  the  hands 
of  the  provincial  prefects,  but  since  1859  the  council  of  state 
gives  the  necessary  permission  in  such  cases.  This  certainly 
is  not  religious  freedom,  as  understood  among  us. 

It  has  been  seen  in  the  course  of  this  sketch  that  the  prac- 
tice has  been  almost  universal  until  modern  times  of  estab- 
lishing state  churches  ;  that  lawgivers  in  ancient  times  acted 
on  the  principle  that  the  state  must  maintain  existing  religions 
and  exclude  others  ;  that  among  the  Jews  and  under  the 
Christian  emperors  of  Rome  one  exclusive  religion  only  was 
tolerated  ;  that  Protestantism  began  on  this  plan  and  had  to 
persecute  in  order  to  carry  it  out  ;  that,  finally,  only  a  few 
nations  in  quite  recent  times  have  made  the  church  entirely 
free  and  separate  from  the  state.  Men  have  pleaded  longer 
for  toleration  than  for  separation  ;  the  Baptists  of  Rhode 
Island  being  the  first  to  make  the  latter  a  distinct  point  in 
their  state  polity.  In  this  close  connection  of  the  state  and 
church  some  of  the  wisest  and  best  of  men  have  concurred  ; 
they  have  gone,  in  fact,  on  the  assumption  that  no  other  plan 
was  possible.  On  what  grounds  did  they  come  to  this  con- 
clusion ?  What  were  their  theories  of  the  right  of  so  doing 
and  their  views  of  the  good  to  result  ?  Let  us  turn  to  the 
opinions  of  a  few  of  them,  and  then  tr>' to  discover  whether 
established  religions,  and  the  close  connection  of  church  and 
state,  have  brought  in  their  train  those  benefits  cither  to  reli- 
gious or  to  political  society  which  were  expected  by  philoso- 
phers or  by  Christians. 

§  256. 

Of  the  opinions  which  prevailed  among  the  wisest  of  the 
Opinions  on  the  Grcck's,  Plato  in  his  Laws  will  be  admitted  to 

relations  of  religion 

tothesuie.  havc  bccn  the  best  exponent.    The  work  opens 

with  the  question  put  to  the  Cretan  who  is  about  to  found  a 
new  colony,  by  the  Athenian  speaker  in  the  dialogue,  whether 
the  Cretan  laws  arc  to  be  ascribed  to  a  God  or  to  some  man. 


470 


POLITICAL  SCIENCE. 


"  To  a  God,  as  we  can  with  all  justice  say,  Zeus  among  us 
and  Apollo  among  the  Lacedaemonians,"  is  the 

Plato's.  ^  ^      .  . 

answer.  The  scene  is  laid  in  the  temple  and 
cave  of  Zeus,  and  the  laws  of  the  new  colony  are  to  be  sanc- 
tioned by  the  Delphic  oracle.  Thus  everything  is  to  com- 
mence with  divine  help  and  direction.  Religious  institutions, 
however,  are  not  treated  of  until  the  eighth  book,  where,  at 
the  beginning,  we  learn  that  every  day  must  have  its  appro- 
priate sacrifice  on  behalf  of  the  city,  of  the  people,  and  their 
goods.  The  laws,  being  brief,  need  go  no  farther  than  to 
prescribe  the  festivals  dedicated  to  the  principal  gods  ;  the 
details  may  be  entrusted  to  the  interpreters  of  religious  rites, 
the  priests,  priestesses,  and  prophets.  All  this  is  to  be  done 
with  the  help  of  oracles  from  Delphi.  After  speaking  of  a 
law  against  sacrilege  in  the  ninth  book,  Plato  goes  on,  in  the 
very  important  tenth  book,  to  consider  ofifences  committed 
more  especially  against  the  gods  themselves.  No  man  ever 
committed  such  offences  who  did  not  either  deny  that  the 
gods  exist,  or  deny  their  providence  or  conceive  that  by 
means  of  propitiations  their  anger  against  wrong  can  be  ap- 
peased. Corresponding  with  these  three  kinds  of  unbelief 
are  three  sorts  of  impiety,  which  may  be  divided,  each  of 
them,  into  two,  in  proportion  to  their  heinousness.  First, 
there  is  the  impiety  of  denying  that  divine  beings  exist. 
This  crime  may  belong  to  men  of  an  honest  nature,  who 
choose  the  society  of  the  good  ;  or  to  crafty  hypocritical  men 
without  principle,  among  whom  are  found  diviners  and  im- 
postors, tyrants,  public  orators,  generals,  initiators  into  pri- 
vate mysteries,  and  sophists.  Plato  would  have  no  punish- 
ment meted  out  to  the  first  of  these  classes,  except  admonition 
and  imprisonment.  "  The  others  commit  a  sin  that  deserves 
not  one,  nor  two,  but  many  deaths."  (908  E.)  Next  follow 
those  who  deny  a  providence,  part  of  whom — those  who  have 
become  such  by  want  of  understanding  without  bad  feelings 
or  character — ought  to  be  put  into  the  house  of  reformation 
for  not  less  than  five  years,  away  from  all  communication 
with  other  men  except  the  members  of  the  nocturnal  council, 


THE  state's  relations  to  religion. 


471 


so  called,  who  are  to  have  converse  with  them  for  their  ad- 
monition and  their  soul's  safety.  (908  E.-909  A.  Conip. 
xii.,  968  A.)  At  the  end  of  this  five  years'  imprisonment, 
if  they  should  be  found  again  to  fall  into  the  same  insanity, 
they  are  to  sufter  death.  Of  the  worse  portion  of  those  who 
deny  a  providence,  and  of  those  still  more  depraved  persons 
who  think  that  the  gods  can  be  induced  by  offerings  or  purga- 
tions to  pass  by  their  sins,  he  omits  to  speak.  But  there  are 
some,  he  says,  belonging  to  the  latter  class,  who  practise 
magic  arts,  evoke  the  dead,  get  an  influence  by  their  arts 
over  the  living,  and  for  money  undertake  to  destroy  private 
persons,  whole  houses,  and  states  ;  these  are  to  be  put  into 
the  dreariest  of  the  prisons  for  life,  and  when  they  die  to  be 
cast  unburied  beyond  the  borders.  (909  C.) 

The  tenth  book  of  the  laws  closes  with  a  prohibition  of 
private  sacred  rites  and  sacred  shrines,  founded  on  the  con- 
sideration that  they  are  the  result  of  vows  made  in  danger  or 
illness,  or  are  intended  to  appease  the  anger  of  the  gods 
against  crimes.  A  penalty  for  having  such  sacra privata  is 
to  be  inflicted  until  compliance  with  the  law  is  effected. 

Plato  wished  to  have  all  proper  instruction  given  to  the 
young,  but  never  reached  the  conception  of  a  church  or  the 
stated  public  inculcation  of  morals  and  religion.  His  motives 
in  his  religious  laws  were  not  merely  drawn  from  the  benefit 
of  the  state,  as  if  the  protection  of  the  gods  could  be  secured 
by  prayers  and  festivals,  but  from  the  improvement  of  the 
character  of  the  community.  He  believed  that  faith  in 
superior  beings  who  abhorred  wrong  was  necessary  not  only 
for  the  state's  welfare  but  for  the  individual's  perfection  ;  and 
that  religion  was  more  than  a  support  of  morals — it  was  to 
be  supported  for  its  own  sake.  No  one  could  be  good  with- 
out it.  As  for  the  rest,  his  plan  of  correcting  unbelievers  by 
admonition  and  imprisonment  is  a  pagan  inquisition,  only 
somewhat  milder  than  that  of  the  Dominicans. 

Cicero  in  the  second  of  his  books  de  legibus  6-27),  treats 
Cicero's.  of  laws  concerning  religion  after  the  manner 
of  Plato,  first  in  a  short  proem  showing  the  importance  to 


472 


POLITICAL  SCIENCE. 


the  state  of  a  belief  in  divine  powers,  then  giving  the  heads 
of  a  code  applying  to  all  things  sacred,  then  commenting 
on  some  of  them  more  at  large.  The  utility  of  a  faith  in 
the  gods,  he  thinks,  no  one  can  deny  who  perceives  how  fre- 
quently oaths  are  used  in  confirming  testimony,  and  how 
salutary  are  the  religious  sanctions  of  treaties.  In  his  sum- 
mary of  laws  he  follows  Roman  usage  and  expresses  Roman 
ideas.  The  main  points  are  that  the  received  religion,  its 
ceremonies  and  functionaries,  are  to  be  maintained  in  honor, 
and  that  the  priests  or  augurs  are  to  have  an  inspection  of  all 
that  which  belongs  to  their  department.  Only  once  or  twice 
are  penalties  mentioned.  Of  perjury,  he  says  that  its  punish- 
ment from  the  gods  is  to  be  exitiinn,  from  men  dedcciis. 
Sacrilege  is  to  be  treated  as  parricide.  Incest  is  to  be  forbid- 
den by  the  priests,  with  the  enforcement  of  the  highest  penal- 
ties. The  decisions  of  the  augur,  in  regard  to  things  unlucky, 
portentous,  and  calling  for  divine  wrath,  are  to  be  respected, 
quique  non  paruerit  capital  esto.  There  are  to  be  two  classes 
of  public  priests,  one  to  preside  over  ceremonies  and  sacred 
rites,  another  to  interpret  the  utterances  of  soothsayers  who 
had  been  declared  by  the  senate  and  people  to  have  author- 
ity. There  are  to  be  no  nocturnal  sacred  rites  of  women,  ex- 
cept those  which  are  duly  made  for  the  people  ;  nor  are  there 
to  be  secret  rites  and  initiations,  except  in  the  worship  of 
Ceres.  No  contributions  in  honor  of  any  god  are  to  be  col- 
lected, except  those  taken  up  by  the  priests  of  the  Idaean 
mother.*  A  limit  is  to  be  prescribed  to  the  quantity  of  the 
precious  metals  and  ivory  consecrated  to  religious  purposes. 
Expense  and  mourning  for  the  dead  are  to  be  kept  within 
bounds.  These  will  give  an  example  of  Cicero's  religious 
laws,  which  show  that  he  would  have  the  system  under  state 
control.  It  does  not  occur  to  him  to  punish  opinions,  as  it 
did  to  Plato.  As  for  the  rest,  there  are  no  profound  thoughts 
in  this  exposition  of  his  views  given  by  the  great  orator. 


*  This  the  law  allowed. 


THE  state's  relations  TO  RELIGION.  473 


^  257. 

The  power  of  the  state  to  legislate  in  this  sphere  was  un- 
Opinions after  the  questioiied,  and  its  use,  as  we  have  seen,  con- 
rise  of  Christianity.   ^^^^^  occasion,  howcver,  after  Chris- 

tianity had  acquired  a  strong  foothold  in  Africa,  a  heretical 
sect  almost  struck  out  a  new  theory  of  the  relations  between 
church  and  state.  The  Donatists  in  Africa,  having  separated 
from  and  denounced  the  orthodox  church  on  the  ground  that 
it  allowed  persons  who  had  given  up  the  sacred  books  in 
Diocletian's  persecution  to  administer  baptism  and  other  rites, 
and  had  thus  acknowledged  that  the  outward  form  in  their 
hands  was  valid  ;  a  great  controversy  was  kindled,  and,  at 
length,  the  civil  power  intervened.  From  mildness  the  offi- 
cers of  the  state  passed  over  to  persecution  of  the  Donatists, 
first  under  Constans  (A.D.  347),  afterwards  under  Honorius 
(414),  when  Augustin  approved  of  the  resort  to  violence.* 
The  Donatists,  under  their  sense  of  injury,  appear  to  have 
discovered  and  proclaimed  the  wrong  of  using  force  in  mat- 
ters pertaining  to  opinion,  and  to  have  approached  the  prin- 
ciple of  a  separation  between  church  and  state.  Neander  (ii., 
212,  Torrey's  Transl.)  remarks  that  "  the  point  of  view  first 
set  forth  in  a  clear  light  by  Christianity,  when  it  made  religion 
the  common  good  of  all  mankind  and  raised  it  up  above  all 
political  restrictions,  was  by  the  Donatists  manfully  asserted, 
in  opposition  to  a  theory  of  ecclesiastical  rights  at  variance 
with  the  spirit  of  the  gospel,  and  which  had  sprung  up  out  of 
a  new  mixture  of  ecclesiastical  with  political  interests.  They 
could  not  succeed  so  well  in  unfolding  the  relations  of  the 
church  to  the  state  [as  in  opposing  force  in  religion],  for  here 
they  easily  passed  over  from  one  extreme  to  the  other.  If 

*  In  a  lost  woik,  contra  part.  Donati,  lib.  ii..  he  had  said  that 
"  he  did  not  approve  of  heretics  being  forced  into  comniunion  by  the 
secular  power."  Now  [retract,  ii.,  5),  he  gives  as  a  reason  for  his 
change  of  oi)inion,  that  then  he  had  not  learned  by  experience  how 
much  evil  they  would  dare  to  do,  owing  to  tlieir  impunity,  nor  how 
much  they  would  be  benefited  by  '•diligent  discii)line." 


474 


POLITICAL  SCIENCE. 


their  opponents  erred  on  the  side  of  confounding  too  much 
the  church  with  the  state,  they,  on  the  other  hand,  were  too 
much  incHned  to  represent  the  opposition  between  the  two, 
which  was  grounded  in  the  early  relation  of  the  church  to  a 
Pagan  state,  as  a  relation  that  must  ever  continue  to  exist." 
This  theory  of  the  relation  of  religion  to  the  state  is  involved 
in  a  reply  of  Donatus,  Bishop  of  Carthage,  to  an  imperial 
officer,  "  quid  est  imperatori  cum  ecclesia,"  which  is  of  a 
piece  with  the  spiritualism  of  their  theology.  But  neither 
their  political  nor  religious  opinions  bore  fruit,  for  they  were 
outweighed  by  the  obloquy  which  attached  to  them  as  schis- 
matics and  the  weight  of  ability  on  the  church  side,  and  it 
was  their  destiny  to  die  out  in  the  overturning  of  Africa  by 
the  Vandals  and  Moors. 

The  Catholic  church  kept  its  ground  against  the  civil  power 
in  part  by  the  theory  of  perfect  independence  with  the  right 
of  being  protected.  The  Protestants  fell  back  again  to  the 
theory  which  prevailed  in  the  Roman  empire  of  the  west,  and 
which  made  the  church  a  tool  of  the  state — the  head  of  the 
state  of  course  being  Christian  and  Protestant.  But  the  rights 
of  an  open  Bible  for  all,  and  of  religious  liberty  which  Protes- 
tantism really  demanded  and  made  necessary,  raised  up  schis- 
matics ;  yet  the  new  churches  already  established,  following 
the  old  precedent,  would  admit  of  no  other  church  by  their 
side  on  an  equal  footing  ;  hence  came  persecution  by  the 
civil  power,  and  a  revelation  by  experience  to  the  persecuted 
party  of  the  value  of  religious  liberty.  But  the  first  disputes 
were  :  what  is  the  form  of  the  church  order  taught  in  the  New 
Testament,  and  what  right  has  the  state  to  force  compliance 
with  rites  and  ceremonies  which  are  not  for  edification.  The 
relations  of  state  and  church  would  thus  come  up  for  consid- 
eration, and  one  of  the  most  thorough  discussions  was  that 
which  appears  in  Hooker's  ecclesiastical  polity. 


THE  STATE'S  RELATIONS  TO  RELIGION.  4/5 


§258. 

The  first  four  books  of  Hooker's  ecclesiastical  polity  ap- 
Hookc-r  on  church  pcarcd  in  1594,  the  fifth  in  1597,  the  sixth  and 
and  state.  eighth  in   1648  (long  after  his  death,  which 

occurred  in  1600),  and  the  seventh  with  those  before  published 
in  1662.  There  is  no  sufficient  reason  to  doubt  that  these 
last  books  are  substantially  as  he  left  them.  His  plan,  which 
he  gives  in  his  preface,  aims  to  refute  the  position  of  Puritan 
Calvinists,  who  held  that  a  government  by  presbytery  and 
synod  was  alone  divinely  prescribed  for  the  Christian  church. 
He  denies  that  any  one  form  of  discipline  is  laid  down  in  the 
Scriptures,  contends  for  episcopacy  as  of  apostolic  origin, 
and  for  the  power  of  the  church  to  make  rules  not  contained 
in  the  Scriptures  which  are  binding  on  its  members,  and  then 
discusses  the  power  which  the  prince  ought  to  have  over  the 
whole  body  politic  in  things  ecclesiastical.  In  the  first  book 
he  declares  "  what  law  is,  what  different  kinds  of  law  there 
are,  and  what  force  they  are  of  according  unto  each  kind." 
In  the  second  he  attacks  the  puritan  position  "  that  Scripture 
ought  to  be  the  only  rule  of  all  our  actions,  and  consequently 
that  the  church  orders  which  we  observe,  being  not  com- 
manded in  Scripture,  are  offensive  and  displeasant  unto  God." 
The  third,  continuing  the  same  argument,  seeks  to  show  that 
it  is  not  true  that  the  government  of  the  church  is  beyond 
human  power  to  modify,  nor  that  "  in  Scripture  there  must 
of  necessity  be  found  some  particular  form  of  polity  ecclesias- 
tical, the  laws  whereof  admit  not  any  kind  of  alteration."  The 
fourth  refutes  the  accusation  that  in  the  established  church 
"  the  right  form  of  church  polity  has  been  corrupted  with 
manifold  popish  rites  which  certain  reformed  churches  ha\  c 
banished  from  among  them  ;  "  antl  tiie  inquiry  is  made 
"  whether  there  be  just  exceptions  against  the  customs  of  our 
church,  when  [men]  plead  that  they  arc  the  same  as  the 
church  of  Rome  hath, .or  that  they  are  not  the  same  which 
other  reforming  churches  have  devised."  In  the  three  next 
books  special  charges  are  examined  against  the  worship,  the 


476 


POLITICAL  SCIENCE. 


introduction  into  orders,  the  power  of  jurisdiction,  especially 
the  standing  and  authority  of  bishops  in  the  church  of  England. 
"  And  because,"  Hooker  adds,  "  besides  the  power  of  order 
which  all  consecrated  persons  have,  and  the  power  of  juris- 
diction which  neither  they  all  nor  they  only  have,  there  is  a 
third  power,  a  power  of  ecclesiastical  dominion,  communica- 
ble, as  we  think,  unto  persons  not  ecclesiastical,  and  most  fit 
to  be  restrained  unto  [i.e. ,  to  belong  exclusively  to]  the  prince 
or  sovereign  commander  over  the  whole  body  politic  ;  the 
eighth  book  is  reserved  unto  this  question,  and  we  have  sifted 
therein  your  objections  against  those  pre-eminences  royal 
which  thereunto  appertain."  (Pref.  ch.  vii.,  172,  173,  ed. 
Keble,  vol.  i.) 

In  the  early  books  H-ooker  in  some  passages  elevates 
"ecclesiastical  authority  even  in  matters  of  belief," — I  cite 
Hallam's  words  (Const.  Hist.,  i.  296), — "  with  an  exaggera- 
tion not  easily  reconciled  to  the  Protestant  right  of  private 
judgment,  not  indeed  on  the  principles  of  the  church  of  Rome, 
but  on  such  as  must  end  in  the  same  conclusion,  and  even  of 
dangerous  consequence  in  those  times."  This  charge  seems 
to  go  too  far.  Hooker  says  (iv.,  13,  p.  476),  that  in  things 
indifferent,  what  the  whole  church  doth  think  convenient  for 
the  whole,  the  same,  if  any  part  do  wilfully  violate  it,  may  be 
reformed  and  inrailed  again  by  that  general  authority  where- 
unto  each  particular  is  subject. "  And  again  (p.  477),  ' '  the  way 
to  establish  the  same  things  indifferent  throughout  them  [i.e., 
through  all  churches],  must  needs  be  the  judgment  of  some 
judicial  authority  drawn  into  one  only  sentence,  which  may 
be  a  rule  for  each  particular  to  follow.  And  because  such 
authority  over  all  churches  is  too  much  to  be  granted  unto 
any  one  mortal  man,  there  yet  remains  that  which  hath  been 
always  followed  as  the  best,  the  safest,  the  most  sincere  and 
reasonable  way,  namely,  the  verdict  of  the  whole  church,  or- 
derly taken  and  set  down  in  the  assembly  of  some  general 
council."  And  yet  he  says  (ch.  14,  p.  484),  "  true  it  is  that 
neither  councils  nor  customs,  be  they  never  so  ancient  and  so 
general,  can  let  the  church  from  taking  away  that  thing  which 


THE  state's  relations  TO  RELIGION. 


477 


is  hurtful  to  be  retained."  That  is,  what  was  good  in  one  age 
may  become  hurtful  in  another  and  be  abrogated,  although 
enacted  by  an  ecumenical  council  and  binding  in  its  day. 
In  these  teachings  there  is  little  to  find  fault  with. 

But  our  concern  is  chiefly  with  the  eighth  book,  where  the 
relations  of  church  and  state  are  discussed.  Here  Hooker's 
principal  points  are  (i)  that  church  and  commonwealth  are  the' 
same  community,  and  that  the  prince  or  supreme  power  in 
the  one  stands  in  a  like  relation  to  the  other.  (2)  The  right 
to  such  power  is  by  contract,  the  people  being  the  ultimate 
source  of  power.  (Comp.  §  61  supr.)  He  regards  it  a  pre- 
sumption in  favor  of  such  a  theory  that  the  civil  chief  among 
the  Jews  had  ecclesiastical  power,  as  is  seen  in  the  instances 
of  David,  Asa,  Simon  Maccab^eus  (l  Mace,  xvi.  41-44),  while 
the  priests  had  no  power  to  change  the  religion.  It  is  true, 
as  he  says,  that  the  changes  in  public  worship  among  the 
Jews  came  constitutionally  from  the  kings,  or  needed  their 
sanction  ;  but  it  is  true  also  that  they  had  no  power  given 
them  to  deviate  from  the  forms  or  the  spirit  of  the  law  of 
Moses.  And  so  Uzziah,  the  most  powerful,  perhaps,  of  the 
later  kings  (2  Chron.,  xxvi.,  21)  when  he  began  to  burn  in- 
cense, a  prerogative  of  the  priests  by  the  Mosaic  law — was 
resisted  by  the  high-priest  and  eighty  of  his  brethren.  "  Our 
state,"  Hooker  says,  "is  according  to  the  pattern  of  God's 
elect  people."  But  this  does  not  make  it  imperative  upon  a 
Christian  people  to  adopt  the  Jewish  system,  for  we  are  author- 
ized by  the  words  of  Christ,  where  he  taxes  the  Mosaic  law 
with  imperfection  (Matth.,  xix.,  8),  as  deviating  from  the  orig- 
inal idea  of  marriage,  to  lay  it  down  that  neither  civilly  nor 
ecclesiastically  the  Jewish  system  was  perfect.  It  was  good 
for  its  time,  for  its  part  in  the  progress  of  mankind,  for  the 
people  it  had  to  deal  with,  but  not  absolutely  good,  and 
therefore  no  universal  pattern.  There  are  no  institutions  that 
are  good  absolutely  or  perfect  ;  they  arc  only  good  relatively, 
and  as  such,  when  circumstances  change,  may  be  changed  for 
something  better. 

Against  the  puritans  of  the  ICnglish  church  in  his  day, 


478 


POLITICAL  SCIENCE. 


Hooker  had  to  maintain  his  position  that  a  church  and  com- 
monwealth may  form  the  same  community.  They  held,  as  he 
states,  their  position,  that  church  and  commonwealth  "are 
distinguished  not  only  in  nature  and  definition,  but  [are]  in 
subsistence  perpetually  severed  ;  so  that  they  which  are  of  the 
one  can  neither  appoint  nor  execute  in  whole  nor  in  part  the 
work  belonging  to  them  which  are  of  the  other,  without  open 
breach  of  the  law  of  God,  which  hath  divided  them  and  doth 
require  that,  being  so  divided,  they  should  distinctly  or  sever- 
ally do  their  works.  With  us  [that  is,  with  Hooker  and  the 
non-puritans  of  the  Church  of  England]  the  name  of  a  church 
importeth  only  a  society  of  men  first  united  into  some  public 
form  of  regiment,  and  secondly,  distinguished  from  other  soci- 
ety by  the  exercise  of  religion."  With  them  the  name  of  a 
church  not  only  denoteth  a  multitude  of  men  so  united,  but 
also  the  same  divided  necessarily  and  perpetually  from  the 
body  of  a  commonwealth,  so  that,  even  in  such  a  political 
society  as  consisteth  of  none  but  Christians,  the  church  and 
commonwealth  are  two  corporations,  each  independently  sub- 
sisting by  itself.  "  We  hold  that,  seeing  there  is  not  any  man 
of  the  Church  of  England  but  the  same  is  also  a  member  of 
the  commonwealth,  nor  any  member  of  the  commonwealth 
which  is  not  also  of  the  Church  of  England — therefore,  one 
and  the  same  multitude  may  be  in  both.  Nay,  it  is  with  us 
true  that  no  person  appertaining  to  the  one  can  be  denied  also 
to  be  of  the  other." 

But  objections  to  this  view  of  his  would  arise  on  the  ground 
that  the  Christian  church  among  the  heathen  has  a  separate 
communion,  and  that  things  pertaining  to  religion  are  distin- 
guished from  others,  and  are  under  spiritual  persons.  He 
admits  an  absolute  separation  between  the  church  among  the 
heathen,  and  the  heathen  state,  although  all  Christians  be- 
longed to  the  state.  There  are,  then,  not  only  conceivable, 
but  also  historically  real  conditions  in  which  state  and  church 
are  separated.  lUit  he  adds  that  when  Rome  became  Chris- 
tian this  separation  could  not  continue  without  supposing  that 
the  clergy  are  the  church  in  a  commonwealth,  to  the  exclu- 


THE  state's  relations  TO  RELIGION. 


479 


sion  of  prince  and  people.  "  For  if  all  that  believe  be  con- 
tained in  the  name  of  the  church,  how  should  the  church  be 
divided  from  the  commonwealth,  when  all  believe  ?  "  They 
are  then,  personally  one  society,  called  a  commonwealth  for 
one  reason,  a  church  for  others,  and  for  this  society  there  • 
must  be  different  officers.  Difference  of  officers,  secular  and 
ecclesiastical,  is  no  argument  that  church  and  commonwealth 
are  always  separate  and  independent." 

Thus,  in  a  commonwealth  of  infidels  the  Christian  church 
and  commonwealth  are  independent ;  in  the  states  under 
papal  jurisdiction,  "there  is  one  society  in  church  and  state, 
but  the  bishop  of  Rome  doth  divide  the  body  into  two,  and 
suffers  not  the  church  to  depend  on  any  civil  prince  ;  while  in 
the  realm  of  England  " — he  might  have  added  in  parts  of  Ger- 
many and  Switzerland,  and  in  the  Scandinavian  countries — 
"  one  society  is  both  church  and  commonwealth,  which  it  was 
not  among  the  heathen,  and,  unlike  the  Catholic  states,  de- 
pendent on  the  chief  in  the  commonwealth." 

There  seem  to  be  several  weak  points  in  this  exposition. 
The  first  is  that  if  there  be  in  a  country  a  minority  of  heathen, 
they  are  of  the  state  but  not  of  the  church,  and  must  continue 
so  unless  it  be  right  to  drive  them  out  or  force  them  to  be- 
come nominally  Christians.  Another  is  that,  if  the  two, 
church  and  state,  are  composed  of  exactly  the  same  persons, 
it  does  not  of  course  follow,  that  church  and  state  are  one. 
Nor  can  any  argument  be  drawn  from  the  evil  of  the  coexist- 
ence of  two  powers,  both  of  which  have  claims  upon  the  con- 
science, for  seeming  collisions  of  obligations  are  always  taking 
place.  Even  in  a  state  religion,  the  limitations  on  the  power 
of  the  prince  (or  supreme  authority)  may  be  such  as  to  give  a 
practical  independence  to  the  church  in  doctrine,  worship, 
discipline,  including  induction  into  office  and  authority,  as 
well  in  exclusively  ecclesiastical  matters  as  in  official  relations 
to  a  parish  or  see.  On  the  other  iiand,  if  the  prince  may  be 
at  heart  an  enemy  of  tlie  church,  or  an  unbeliever  indifferent 
to  its  interests,  a  theory  that  would  give  him  any  in^portant 
control  over  the  church  cannot  be  truly  a  Christian  one.  The 


48o 


POLITICAL  SCIEN'CE. 


church  ought  to  be  controlled  by  those  who  have  a  Christian 
faith. 

But  to  return  to  Hooker's  doctrine.  Church  and  state  being 
one,  and  the  ruler  being  head  over  both,  whence  does  he 
derive  his  power  ?  Hooker,  before  Grotius,  conceives  of  a 
contract  in  which,  according  to  certain  conditions,  he  is 
appointed  to  his  office  for  himself  and  his  line  by  the  people 
(comp.  §  6i  u.  s.).  According  to  this  view,  church  and  state, 
or  the  nation  acting  in  both  capacities,  ought  to  consent  to  the 
introduction  of  a  new  line  of  rulers,  when  the  existing  one 
runs  out,  or  when  the  actual  prince  has  violated  the  original 
contract.  For  surely  so  important  a  transaction  as  putting  on 
him  a  double  crown,  ought  not  to  be  regarded  as  simply  po- 
litical, but  requires  the  consent  of  the  church — acting,  now  that 
there  is  no  prince,  by  its  organic  powers.  And  of  the  viola- 
tion of  contract  the  country  must  judge. 

The  true  view,  however,  would  seem  to  be  that,  in  the  na- 
ture of  a  spiritual  religion  like  Christianity,  which  has  exter- 
nal relations  also,  there  is  a  department  where  it  is  independent, 
and  another  where  it  must  either  be  controlled  by  state  law  or 
control  the  state.  Practically,  if  all  the  people  belong  to  one 
church,  there  must  be  such  a  division  between  the  work  of 
the  political  and  that  of  the  ecclesiastical  functionary,  that  they 
shall  not  invade  each  other's  province.  Much  more,  when 
free  thought,  united  with  narrowness  of  mind,  a  speculative 
spirit,  and  a  scrupulous  conscience,  produces  diversity  of 
sects,  there  needs  to  be  a  separation  more  complete  between 
the  two  powers,  lest  by  attempts  at  uniformity  the  state, 
aided  by  a  part  of  the  people,  produces  such  bitterness  be- 
tween different  theologies  or  ecclesiastical  forms,  as  shall 
seriously  endanger  the  peace,  if  not  the  stability  of  a  country. 
Hooker's  theory,  almost  of  course,  leads  to  persecution. 

Hooker's  views  of  the  power  of  a  church  in  things  indiffer- 
ent, contrast  favorably  with  the  narrow  adherence  of  the  puri- 
tans to  the  letter  of  Scripture,  and  this,  with  his  great  breadth 
of  thought  in  general,  and  his  advocacy  of  an  ecclesiastical 
doctrine  which  lay  at  the  basis  of  the  English  establishment 


THE  state's  relations  to  religion. 


without  being  ritualistic  or  mediseval,  has  put  him  deservedly 
in  the  front  rank  of  writers  on  ecclesiastical  polity  in  that 
country.  The  political  side  of  his  theory  tended  to  form  that 
of  Locke.    (Comp.  Hallam,  Const.  Hist.,  i.,  297.) 

Among  more  recent  writers  on  the  relations  between  church 
and  state,  Bishop  Warburton  only,  with  two  distinguished 
men  of  our  own  day,  Dr.  Thomas  Arnold  and  Mr.  Gladstone, 
can  be  spoken  of  here,  and  of  their  opinions  but  a  short  ac- 
count can  fall  within  our  limits. 

^  259. 

Warburton's  treatise  "  on  the  alliance  between  church  and 
Warburton  on  State,  or  the  ncccssity  and  equity  of  an  estab- 
church  and  state,  jj^j^^j  religion  and  a  test-law  demonstrated," 
in  three  books,  first  published  in  1736,  deserts  the  grounds 
on  which  Hooker  stood  in  several  very  important  respects. 
He  says  (ii.,  5.  P-  221),*  that  "  the  Puritans  and  their  incom- 
parable adversary  .  .  .  divided  truth  and  falsehood  pretty 
equally  between  them.  The  Puritans  were  right  in  supposing 
church  and  state  to  be  two  independent  societies  ;  they  were 
wrong  in  supposing  the  two  societies  must  always  continue 
so  ;  but  right  again  in  holding  that  while  they  did  so  continue, 
the  civil  magistrate  had  nothing  to  do  with  religion.  On  the 
other  hand,  Hooker  was  wrong  in  thinking  church  a7id  state 
was  only  one  society  under  two  different  names.  He  was 
right  in  asserting  the  civil  magistrate's  supremacy  in  religion, 
but  wrong  again  in  supposing  that  this  supremacy  was  by 
nature  and  not  by  compact.  Thus  from  right  premises  the 
•  Puritans  drew  a  wrong  conclusion  ;  and  from  wrong  premises 
Hooker  drew  a  right  one.  But  if,  from  the  wrong  conclusion 
of  the  former,  the  supremacy  of  the  magistrate  was  forever 
excluded,  yet  from  the  right  conclusion  of  the  latter  he  was 
admitted  before  the  time.  And  all  this  confusion  arose  from 
common  error,  admitted  on  both  sides,  that  if  church  and 
state  be  distinct  and  indci)cndent  societies,  tliey  must  coer 

*  I  cite  vol.  vii.  of  his  works,  London,  181 1. 
VOL.  II.— 31 


482 


POLITICAL  SCIENCE. 


remain  distinct  and  independent.  The  result  from  all  we  have 
seen  was  this,  that  the  pnritatt  principle  established  an  iin- 
pcriinn  in  iinpo-io,  and  that  Hooker's  introduced  persecution 
for  opinions'' 

Warburton  then  conceived  of  a  relation  between  two  inde- 
pendent powers,  a  state  and  a  church.  How  such  indepen- 
dence came  to  begin  he  nowhere  tells  us,  if  I  am  not  deceived  ; 
and  as  Christianity  was  not  coeval  with  the  societies  where  it 
flourished,  it  could  only  have  come  into  a  given  state  by  suf- 
ferance or  by  some  superior  power.  But,  not  to  dwell  on  this, 
he  conceives  of  civil  society  as  laboring,  when  it  was  alone, 
under  several  defects.  Its  laws  could  only  restrain  from  open 
transgression  and  often  were  unequal  to  that  result ;  it  is  gen- 
eral in  its  operations,  while  the  care  of  religion  is  for  particu- 
lars ;  it  could  make  laws  for  perfect,  but  not  for  imperfect 
obligations  {i.e.,  duties]  and  their  infraction,  and  it  actually 
increased  and  inflamed  the  inordinate  appetites  of  a  state  of 
nature  for  whose  correction  it  was  invented  and  introduced. 
Society  again  can  punish,  but  it  cannot  (in  any  adequate  de- 
gree and  measure)  reward.  This  only  religion  can  do,  and 
thus  is  necessary  to  civil  government  (B.  I.  to  chap.  iv.). 

The  end  of  civil  society  is  security  to  the  temporal  liberty 
and  property  of  man.  The  end  of  religion  is  the  salvation  of 
the  soul  by  means  of  doctrine  and  morals,  which,  equally  with 
the  end,  must  be  outside  of  the  province  of  the  civil  magistrate. 
This  maxim,  however,  that  doctrine  and  moral  opinion  are 
not  within  the  magistrate's  sphere,  must  be  qualified  by  ex- 
cepting from  it  the  being  and  providence  of  a  God,  and  the 
natural  essential  difference  between  good  and  evil.  These 
arc  excepted,  because  they  are  the  very  foundaHon  and  bond 
of  civil  policy.  He  then  endeavors  to  set  forth  the  causes 
which  have  concurred  in  producing  mistakes  in  regard  to  the 
magistrate's  real  office. 

The  end  of  religion  is  to  procure  the  favor  of  God,  and  to 
advance  and  improve  our  own  intellectual,  i.e.,  our  inward, 
as  opposed  to  our  animal  nature.  It  leads  to  a  religious 
society,  which  by  its  nature  is  sovereign  and  zvithojit  depend- 


THE  state's  relations  TO  RELIGION. 


483 


ciice  on  the  civil.  This  religious  society,  however,  has  not 
in  and  of  itself  any  coercive  power  of  the  civil  kind.  Coer- 
cion is  unnecessary  and  unfit  for  the  attainment  of  the  good 
which  religion  proposes.  As  to  the  objection  that  purity  of 
worship,  being  outward  practice,  can  properly  be  supported 
by  coercive  measures,  he  admits  thus  much  :  that  a  religious 
society  has  and  must  have  in  itself  the  power  of  expelling 
refractory  members  from  its  body,  or,  in  other  words,  a  right 
of«xcommunication  (i.,  ch.  5). 

In  Book  second,  Warburton  discusses  that  union  between 
'church  and  state  which  produces  a  religion  established  by  law. 
It  is  an  alliance  by  free  convention  and  mutual  compact  be- 
tween parties,  one  of  which  cares  only  for  the  body,  the  other 
for  the  soul.  Each  party  had  motives  of  its  own  in  making 
this  alliance.  The  magistrate  or  the  state  had  for  its  motives 
to  preserve  the  essence  and  purity  of  religion,  to  improve  its 
usefulness  and  apply  its  influence  in  the  best  manner,  and  to 
prevent  the  mischief  which  in  its  natural  independent  state  it 
might  occasion  to  civil  society.  The  motive  of  the  church 
could  be  no  other  than  security  from  external  violence.  Two 
other  conceivable  motives — to  engage  the  state  to  propagate 
the  established  religion  by  force,  and  to  obtain  from  the  state, 
honors,  riches,  and  powers — Warburton  dismisses,  the  one  as 
unjust,  the  other  as  impertinent. 

From  the  fundamental  articles  of  the  alliance — which  are 
that  the  church  shall  apply  its  utmost  influence  in  the  service 
of  the  state,  and  that  the  state  shall  support  and  protect  the 
church' — are  to  be  deduced  the  terms  and  mutual  grants  of 
the  alliance.  From  the  obligation  of  the  church  proceeds  a 
settled  maintenance  for  the  ministers  of  religion,  and  an  eccle- 
siastical jurisdiction  with  coactivc  power,  which  introduce  the 
dependency  of  the  clergy  on  the  state.  From  the  state's 
obligation  to  protect  the  church  proceeds  the  ecclesiastical 
supremacy  of  the  civil  magistrate,  "which  again  introduccth, 
on  the  other  hand,  the  jight  of  churchmen  to  a  share  in  the 
legislature."  Thus,  the  church  receives  from  the  state  a  jjublic 
endowment  for  its  ministers,  a  seat  of  the  bishops  in  parlia- 


484 


POLITICAL  SCIENCE. 


ment,  and  a  jurisdiction  by  coactive  power  for  reformation  of 
manners.  The  second  point — which  touches  not  the  general 
argument,  but  the  special  case  of  the  church  of  England — is 
thus  defined  :  that  the  bishops  sit  as  guardians  of  the  church 
and  barons  of  the  realm  ;  as  part  of  an  estate  and  not  a  sepa- 
rate estate  by  themselves,  and  by  a  right  which  would  termi- 
nate with  the  termination  of  the  alliance.  The  third  point — ■ 
the  privilege  of  jurisdiction  for  reformation  of  manners — is 
thus  qualified,  that  no  matters  of  opinion  and  no  civil  maters 
which  the  temporal  courts  can  inspect  properly  come  under 
it ;  that  the  clergy  are  themselves  under  the  civil  laws  ;  and 
that  the  ecclesiastical  courts  are  dependent  in  the  last  instance 
on  the  civil. 

On  the  other  hand,  the  state  by  this  alliance  receives  su- 
premacy in  matters  ecclesiastical.  Hence,  no  ecclesiastic  can 
exercise  his  functions  without  approbation  of  the  magistrate, 
nor  any  church  assembly  sit  without  his  permission,  nor  any 
member  of  the  church  thus  established  be  excommunicated 
without  his  consent. 

In  another  chapter  he  seeks  to  show  that  the  Christian  reli- 
gion is  of  all  others  best  fitted  for  such  an  alliance  with  the 
state  as  may  be  most  productive  of  their  mutual  advantage, 
and  that  of  all  establishments  the  church  of  England  is  the 
most  perfect.  This,  as  not  essential  to  the  general  argument, 
we  omit,  and  pass  on  to  the  third  book,  where  test-laws  are 
defended.  At  the  beginning  of  this  book  he  defines  a  test- 
law  to  be  "some  sufficient  proof  or  evidence,  required  from 
those  admitted  into  the  administration  of  public  affairs,  that 
they  are  members  of  the  religion  established  by  law."  Here 
it  occurs  to  him  that  there  may  be  at  the  time  of  the  alliance 
more  than  one  religion.  Which  of  these  shall  the  state  take 
as  its  partner?  Warburton  answers  unflinchingly  the  largest ; 
the  largest  being  more  nearly  on  an  equality  with  the  state  than 
the  rest,  as  well  as  having  better  ability  to  answer  the  ends  of 
the  alliance  and  swaying  by  its  influence  the  greater  number. 
Yet  full  toleration  is  to  be  given  to  the  minor  religions,  with 
the  restriction  of  a  test-law  to  keep  them  from  hurting  that 


THE  STATE'S  RELATIONS  TO  RELIGION.  485 

which  is  established.  According  to  this  principle,  where 
there  is  a  union  of  countries  under  one  sovereign,  there  may 
be  several  established  religions,  as  the  Episcopal  in  England, 
the  Presbyterian  in  Scotland  (and  his  position  w^ould  require 
him  to  say  the  Catholic  in  Ireland).  And  again,  where  the 
church,  selected  on  account  of  its  numbers,  loses  its  superior- 
ity, it  may  be  disestablished,  "  and  a  new  alliance  is  of  course 
contracted  v.ith  the  now  prevailing  church,  for  the  reasons 
Avhich  led  to  the  old  alliance."  Thus  the  alliance  between  the 
Pagan  church  and  the  Roman  empire,  and  that  between  the 
Popish  church  and  the  kingdom  of  England,  were  broken 
because  these  could  no  longer  observe  the  terms  of  the  alli- 
ance. 

But,  if  the  minor  religions  spring  up  after  the  formation  of 
the  alliance  of  a  church  with  a  state,  and  are  only  tolerated, 
the  feeling  that  every  one  of  them  has,  that  it  alone  is  true 
and  pure,  causes  it  to  aim  at  the  ruin  of  the  rest  ;  while  envy 
at  the  advantages  of  an  establishment  will  unite  the  tolerated 
churches  in  one  common  quarrel  to  disturb  its  peace.  Thus 
the  establishment  needing  protection  calls  on  the  state  for 
help,  which  gives  it  a  test-law  for  its  security,  whereby  an 
entrance  into  the  administration  is  shut  to  all  but  members 
of  the  established  church.  Such  a  test-law  is  required  by  the 
terms  of  the  alliance,  and  is  fairly  a  right  of  the  church;  the 
security  of  the  state  equally  demands  it  on  the  principle  "  that 
no  man  ought  to  be  trusted  with  any  share  of  power  under 
a  government,  who  must,  to  act  consistently  with  himself, 
endeavor  the  destruction  of  that  very  government."  Thus, 
if  establishment  and  toleration  had  been  secured  with  no 
check,  the  evils  would  have  been  increased.  A  test-law  was 
necessary  to  mitigate  these  evils  and  guarantee  the  existing 
state  of  things. 

The  remainder  of  the  book  is  taken  up  with  refuting  objec- 
tions, of  which  there  are  three  main  ones— that  a  test-law  vio- 
lates the  common  rights  of  subjects,  is  injurious  to  true  reli- 
gion, and  may  endanger  religious  liberty.  It  is  the  less 
necessary  to  enter  in  detail  into  these,  since  test-laws  have 


486 


POLITICAL  SCIENCE. 


disappeared  from  the  English  constitution,  which  it  was  the 
aim  of  the  work  to  defend,  and  since  an  estabhshment  may 
be  sustained  without  them — better,  as  experience  seems  to 
hav'e  shown,  without  than  with  them. 

The  conception  of  an  estabUshed  church  in  this  treatise  is  a 
very  low  one,  and  would  commend  itself  to  no  earnest  mind. 
Let  the  state  choose  the  strongest  church,  whatever  it  be, 
hedge  it  around  with  law,  especially  defend  it  by  a  test- law  ; 
this  is  all.  Could  this  satisfy  the  claims  of  any  Christian  con- 
fession ?  The  church  is  thus  the  creature  of  the  state,  liable 
to  be  cast  off  if  it  loses  its  relative  superiority  to  other  tolera- 
ted religious  bodies,  and  put  into  its  position  because  it  serves 
the  state's  purposes. 

The  toleration  conceived  of  is  a  step  beyond  the  old  condi- 
tion of  sectaries,  thanks  to  the  tolerant  but  indifferent  age 
of  Locke.  But  the  principle  of  the  test-laws  must  allow  not 
only  the  exclusion  of  those  who  do  not  belong  to  the  estab- 
lished church  from  a  share  in  the  government,  but  also  the 
punishment  of  all  who  undertake  by  writing  or  action  to  seek 
to  weaken  the  establishment. 

It  is  not  true  that  a  church,  as  independent  as  any  large 
community  in  the  state  can  be,  must  needs  be  an  hnperium 
in  imperio.  It  is  protected  within  its  own  sphere  of  action  ; 
but  if  it  go  beyond  the  law,  some  individual  transgresses  the 
law  on  its  behalf  and  is  punishable.  It  can  hold  property, 
landed  or  other,  unless  the  state  forbid,  and  if  it  is  accumulat- 
ing too  much  in  its  hands,  the  law  can  prevent  this  as  the 
laws  of  mortmain  prevented  it.  Several  churches  within  the 
state  would  each  prevent  the  other  from  becoming  an  imperi- 
um  in  tjnperio.  Warburlon,  again,  seems  not  to  have  thought 
it  possible  that  the  alliance  which  he  favors  would  tend 
to  frustrate  the  good  he  has  in  view.  But  it  certainly  may 
be  true  that  spiritual  ends  contemplated  in  the  existence  of  a 
church,  and  the  great  help  it  can  afford  to  the  state  if  it  keeps 
to  its  purity,  may  not  be  as  likely  to  be  realized,  if  by  its  alli- 
ance with  the  state  it  is  able  to  put  on  dignity  and  worldly 
magnificence,  if  its  higher  clergy  are  barons  and  peers  in  par- 


THE  state's  relations  TO  RELIGION. 


487 


llament ;  as  if  it  were  engaged  in  the  simple  work  to  which 
it  is  called  of 
Christian  life. 


it  is  called  of  being  a  guide  to  the  souls  of  men  towards  a 


260. 

Dr.  Arnold's  views  we  gather  principally  from  a  fragment 
Arroid-s  opinion  on  thc  church.  Written  in  1839-1841,  but  pub- 
on  church  and  state,  jighed  after  his  dcath,  which  occurred  in  1842. 
In  the  second  edition  (1845),  two  appendices  are  added. 
This  is  but  a  part  or  a  prelude  to  a  longer  work  which  this 
admirable  man  had  in  contemplation.  Briefly  expressed,  they 
are  these  :  that  as  the  object  of  Christian  society  includes 
both  the  improvement  of  the  life  of  its  members  by  the  means 
and  motives  which  the  gospel  supplies,  and  also  the  increase 
of  the  society  beyond  its  existing  bounds  until  it  become  uni- 
versal, so  great  an  extent  of  plan  requires  "  that  it  should  be 
a  sovereign  society  or  conmionwealth  ;  "  for  as  long  as  it  is 
subordinate  or  municipal,  it  cannot  fully  carry  its  purposes 
into  effect.  On  that  supposition  two  powers,  the  one  pos- 
sessed of  wisdom,  the  other  of  external  force,  act  together  on 
the  whole  of  our  being  and  often  in  opposition  to  one  another. 
This  power  and  wisdom  ought  normally  to  be  united  ;  "  the 
Christian  church  should  have  no  e.xternal  force  to  thwart  its 
beneficent  purposes,"  and  "  government  should  not  be  poi- 
soned by  its  internal  ignorance  and  wickedness,"  so  as  to 
"  advance  the  cause  of  God's  enemy  rather  than  perform  the 
part  of  God's  vicegerent."  This  is  the  perfect  notion  of  a 
Christian  church,  that  "  it  should  be  a  sovereign  society, 
operating  therefore  with  full  power  for  raising  its  condition, 
first  morally,  then  physically;  operating  through  the  fullest 
development  of  the  varied  faculties  and  qualities  of  its  sc\x'ral 
members,  and  keeping  up  continually  as  the  bonds  of  its 
union,  the  fellowship  of  all  its  people  with  one  another  through 
Christ,  and  their  communion  with  him  as  their  common 
head  "  (pp.  4-12). 

With  this  notion  of  a  Christian  church  are  inconsistent  :  first, 
the  system  "  in  which  a  very  few  of  its  members  are  active. 


488 


POLITICAL  SCIENCE. 


and  the  great  mass  passive,  or  popery  in  all  its  shapes, 
Romanist  or  Protestant ;  "  and  secondly,  "  the  taking  of  any 
part  or  parts  of  human  life  out  of  its  control,  by  a  pretended 
distinction  between  spiritual  things  and  secular,"  a  heathen- 
ish distinction,  "  which  tends  to  make  Christianity,  like  the 
religions  of  the  old  world,  not  a  sovereign  discipline  for  every 
part  and  act  of  life,  but  a  system  of  communicating  certain 
abstract  truths,  and  for  the  performance  of  certain  visible 
rites  and  ceremonies  "  (p.  13).  Under  the  first  of  these  two 
heads  the  error  culminates  in  the  notion  of  a  priestly  class  or 
order  in  Christianity,  which  Arnold  undertakes  to  refute  in 
the  remainder  of  this  unfinished  work  (pp.  24-132).  In  the 
appendix,  his  views  on  the  relations  of  church  and  state, 
which  w^ould  have  followed  apparently  under  the  second  head 
mentioned  above,  are  expressed  in  several  fragments.  In 
his  plan  of  a  work  on  "  Christian  Politics  "  belonging  to  1832, 
after  speaking  of  the  evils  and  causes  of  dissent,  and  of  the 
pretended  remedies  for  it,  of  which  he  names  two — disestab- 
lishment, and  absolute  equality  of  dissenters  with  churchmen 
in  civil  rights,  by  which  latter  their  separation  from  the  es- 
tablishment would  be  confirmed  and  increased, — he  comes  to 
the  "  true  remedy."  This  he  considers  to  be  "an  enlarged 
constitution  of  the  Christian  church  of  England,  which  is  the 
state  of  England."  We  may  find  out  his  meaning  in  these 
words  from  another  fragment  written  in  1833-34  (pp.  167  et 
seq.).  The  "great  errors  which"  "he  here  purposes"  to 
combat  are  two  ;  one  relating  to  the  state,  and  the  other  to 
the  church.  "The  first  is  that  the  state,  as  such,  is  of  no 
religion,"  "  that  its  business  is  simply  to  look  after  the  bodies 
of  men  ;  to  provide  for  the  security  of  their  persons  and 
property  ;  and  that,  therefore,  it  may  and  ought  to  leave  the 
concerns  of  religion  to  individuals,  and  to  make  no  public  pro- 
vision for  its  maintenance."  The  premise  and  conclusion  here 
have  been  generally  held  together,  although  Warburton  held 
the  premises  and  advocated  the  association  of  an  established 
religion  by  the  state  with  itself  as  an  ally.  But  in  reality 
the  state  employs  its  services  as  it  would  the  services  of  medi- 


THE  state's  relations  TO  RELIGION. 


489 


cine,  agriculture,  or  political  economy,  fixing  its  place  and 
giving  it  certain  privileges  by  law.  Thus  the  state  is  "an  » 
authority  essentially  sovereign  over  human  life,"  and  "  must 
naturally  have  a  proportionate  responsibility.  Standing  as  it  / 
were  in  the  place  of  God,  it  should  imitate  God's  government, 
wherever  the  imperfections  of  humanity  do  not  render  such 
imitation  impossible.  It  seems  then  an  uncalled-for  assertion 
to  maintain  that  it  should  regard  the  bodies  of  men  only," 
and  the  wider  doctrine  of  the  old  philosophers  is  surely  better 
in  accordance  with  the  state's  sovereignty.  Here  Arnold 
enters  into  a  refutation  of  Warburton's  opinions  in  several  re- 
spects, growing  out  of  his  position  that  the  state  ought  to 
teach  the  three  fundamental  principles  of  natural  religion,  the 
being  and  providence  of  God  with  the  natural  essential  differ- 
ence between  moral  good  and  evil,  yet  not  as  "  promoting 
our  future  happiness  but  our  present,"  and  as  being  the 
foundation  and  bond  of  civil  policy,  whereby  the  doctrine  that 
the  sole  end  of  civil  society  is  the  conservation  of  body  and 
goods  is  not  contradicted.  The  state  also  must  punish  evil 
or  other  principles,  according  to  Warburton,  than  those  of 
pure  morality  and  religion,  and  is  unable  to  reward  virtue.  On 
these  points  Arnold  observes  first,  that  temporal  or  present 
happiness  is  the  same  in  kind  with  future,  and  were  this  the 
state's  immediate  object,  conservation  of  body  and  goods 
would  be  but  a  small  part  of  it.  Again  to  the  position  that 
the  state  cannot  reward  virtue  he  replies  that  the  church  is 
equally  unable  to  do  the  same  ;  it  professes  to  believe  in  such 
rewards,  and  teaches  such  a  faith  through  its  public  teachers, 
as  it  does  through  its  members,  but  it  goes  no  further.  To 
the  remaining  position  that  "the  state  punishes  on  other 
principles  than  those  of  morality  and  religion,"  as,  for  in- 
stance, "  on  account  of  and  in  proportion  to  the  malignant 
influence  of  wrongdoing  on  civil  society,"  Arnold  replies  that 
this  imputation  peculiarly  touches  the  state  and  is  one  to 
which  every  society  composed  of  human  beings  is  liable. 
It  might  be,  and  has  been  maintained  that  the  church— how- 
ever related  to  the  state— has  no  punishment  of  its  own  ;  its 


490 


POLITICAL  SCIENCE. 


censures  only  suspend  or  shut  out  from  the  privileges  of  the 
society  for  purposes  of  correction,  that  "  the  spirit  may  be 
saved,"  or  at  most,  declare  the  offender  to  be  of  such  a  char- 
acter tliat  fellowship  with  him  is  impossible.  In  the  appen- 
dix to  the  inaugural  lecture  delivered  by  him  as  professor  of 
modern  history  (p.  74,  Am.  Ed.),  his  opinions  on  this  point, 
and  the  nature  of  the  state  are  given  in  brief  a  little  before 
his  death.  Excommunication  he  regards  as  a  penalty  like  the 
Greek  arista.  But  surely,  if  it  deprives  of  no  civil  rights  and 
derives  its  lawfulness  not  from  state-law,  but  from  the  New 
Testament,  it  cannot  be  regarded  as  a  penalty  proceeding 
from  the  state,  and  the  church  does  not  practice  it  as  such. 

is  great  point  is  that  the  state  has  moral  ends  which  we 
acknowledge.  But  in  carrying  out  his  views,  he  not  only 
holds  that  a  Christian  state  "  being  the  perfect  church,  should 
do  the  church's  work,"  but  also  that  a  "  time  might  come 
when  a  rejection  of  Christianity  would  be  so  clearly  a  moral 
offense,  that  profane  writings  would  be  as  great  a  shock  to  all 
men's  notions  of  right  and  wrong  as  obscene  writings  are  now, 
and  the  one  might  be  punished  with  no  greater  injury  to 
liberty  of  conscience  than  the  other."  Thus  the  perfect 
church  will  punish  for  opinions.  But  the  shock  given  by  ob- 
scene writings  is  not  the  primary  cause  why  it  should  be  ra- 
tionally punished.  A  rejection  of  Christianity  on  the  part  of 
the  profligate  may  do  good  ;  calm  discussion  may  do  good  ; 
obscenity  is  only  evil. 

It  is  true,  he  adds,  that  governments,  owing  to  the  feeble  in- 
fluence of  philosophy  and  religion  over  human  laws,  have 
confined  themselves  to  lower  sorts  of  good  to  the  neglect  of 
liigher.  Supposing,  however,  the  influential  majority  in  any 
state  to  be  good  and  wise  men,  their  political  wisdom  would 
e;nploy  religion  and  philosophy  to  i;ronu)tc  the  moral  and 
intellectual,  no  less  than  other  means  to  promote  the  physi- 
cal well-being  of  their  community.  In  such  a  case  the  state's 
sovereign  power,  combined  with  its  peculiar  wisdom,  would 
I  choose  for  itself  the  true  religion,  as  it  would  choose  also  the 
1  truest  system  of  political  science,  and  in  adopting  this  religion 


THE  state's  relations  TO  RELIGIOX.  49I 


would  declare  a  belief  in  its  promises,  and  an  adherence  to 
its  precepts — in  other  words  declare  itself  Christian.  By  so 
doing  it  becomes  a  part  of  Christ's  Holy  Catholic  church  ; 
not  allied  zcit/i  it,  which  implies  distinctness  from  it,  but 
transformed  into  it.  But,  as  for  the  particular  portion  of  this 
church  which  may  have  existed  before  within  the  limits  of  the 
state's  sovereignty — the  actual  society  of  Christian  men  there  ' 
subsisting — the  state  does  not  ally  itself  with  such  a  society ; 
for  alliance  supposes  two  parties  equally  sovereign,  nor  yet 
does  it  become  the  church,  as  to  its  outward  form  and  organ- 
ization ;  neither  does  the  church  on  the  other  hand  become 
so  lost  in  the  state,  as  to  become  in  the  ofTensive  sense  of  the 
term,  secularized.  The  spirit  of  the  church  is  transfused/ 
into  a  more  perfect  body,  and  its  former  external  organization 
dies  away.  The  form  is  that  of  the  state,  the  spirit  is  that  of 
the  church  ;  what  was  a  kingdom  of  the  world  is  become  a 
kingdom  of  Christ,  a  portion  of  the  church  in  the  high  and 
spiritual  sense  of  the  term  ;  but  in  that  sense  in  which 
"church"  denotes  the  outward  and  social  organization  of 
Christians  in  any  one  particular  place,  it  is  no  longer  a  Chris- 
tian church,  but  what  is  far  higher  and  better,  a  Christian 
kingdom." 

To  the  view  here  set  forth  several  objections  can  be  made, 
which  Dr.  Arnold  notices  in  order.  The  first  is  "  that  it 
interferes  with  the  political  rights  of  men  by  making  them 
depend  on  religious  opinion  ;  for  if  the  state,  as  such,  be 
essentially  Christian,  those  who  are  not  Christians  cannot  be 
members  of  it."  [And  those  who  are,  it  might  be  added,  on 
emigrating  to  such  a  country,  ought  to  become  citizens  at 
once.]  The  validit)'  of  this  conclusion  is  admitted,  and 
Arnold  docs  not  shrink  from  avowing  that  "  Christianit\- 
forms  so  broad  a  line  morally  between  those  who  embrace  it 
and  other  men,  that  a  man  who  is  not  a  Christian  is  most 
justly  excluded  from  citizenship  in  a  Christian  state,  not 
merely  on  grounds  furnished  by  revelation,  but  according  to 
the  highest  and  noblest  views  of  the  nature  of  political  soci- 
ety."   While  thus  he  gives  a  more  antique  cast  to  the  notion 


POLITICAL  SCIENCE. 


of  citizenship,  he  would,  without  doubt,  admit  that  non- 
citizens  ought  to  have  those  securities  which  justice  makes 
right. 

Another  objection  which  he  notices  is  that,  owing  to  almost 
necessary  differences  of  rehgious  opinions,  the  state  will  have 
a  vague  and  very  comprehensive  creed  ;  or,  if  it  adopts  the 
creed  of  a  particular  sect,  dissenters  will  either  be  excluded 
from  political  rights  or  will  be  qualified  to  legislate  for  the 
concerns  of  an  established  religion  with  which  they  do  not 
hold  communion. 

In  reply  he  says,  "  I  call  a  state  '  Christian  '  when  it  de- 
clares its  belief  in  the  divine  origin  and  supreme  authority  of 
the  Christian  revelation  as  contained  in  the  Scriptures  ;  I  call 
the  united  kingdom,  as  yet,  a  Christian  nation,  although  it 
be  neither  Episcopal  nor  Presbyterian,  but  establishes  the 
one  form  in  England  and  the  other  in  Scotland."  And  if  the 
parts  complain  that  the  state  is  not  fit  to  legislate  for  them 
because  its  supreme  government  consists  indifferently  of  both 
parties,  this  supposes  so  strong  a  sense  of  differences  as  to 
render  it  proper  that  they  should  rather  form  a  confederacy 
than  a  state. 

But  it  is  said  also  that  "  the  church  is  essentially  distinct 
from  the  state  and  ought  not  to  be  confounded  with  it.  It 
may  be  correct  to  say  that  they  are  allied  together,  but  not 
that  the  state  is  actually  the  church."  To  this  Arnold  replies 
that  if  the  sole  object  of  political  society  is,  as  Warburton 
holds  it  to  be,  the  conservation  of  body  and  goods,  the  dis- 
tinction between  it  and  the  church  is  necessary  and  perpet- 
ual. But  if  the  object  of  the  church  is  the  advancement  and 
improvement  of  our  intellectual  nature,  as  Warburton  defines 
it,  "  then  it  is  as  nearly  as  possible  identical  with  what  Aris- 
totle declares  to  be  the  object  of  the  state,  namely  the  happi- 
ness of  society,  happiness,  as  he  expressly  insists,  consisting 
both  in  physical  and  moral  good,  but  much  more  in  the  latter 
than  in  the  former  (Arist.,  pol.,  vii.  or  iv.,  I,  2,  3,  4,  12). 
Every  state  which  is  not  Christian  seeks  man's  highest  happi- 
ness with  mistaken  views,  and  every  church,  before  the  state 


THE  state's  relations  TO  RELKUOX.  493 

becomes  Christian,  seeks  man's  highest  happiness,  since  the 
cessation  of  miraculous  gifts,  with  deficient  power."  "It  is 
constantly  thwarted  by  not  possessing  the  power  of  out- 
ward dominion,  hut  the  state  is  capable  of  receiving  the 
knowledge  of  the  church,  whereas  it  cannot  part  with  its  es- 
sential attribute,  nor  is  the  church  fitted  to  exercise  it.  Thusj 
the  state,  having  been  enlightened  by  the  knowledge  of  the 
church,  becomes  a  society  seeking  the  same  end  which  the 
church  sought,  and  with  the  same  knowledge,  but  with  more 
extensive  means  of  attaining  it,  because  its  inherent  sove- 
reignty gives  it  a  greater  power  over  outward  things.  And 
this  was  my  meaning,"  says  he,  "  when  I  said  that  in  a  coun- 
try where  the  nation  and  government  are  avowedly  and 
essentially  Christian,  the  state  or  nation  was  virtually  the 
church." 

Until  such  an  ideal  state  of  society  becomes  a  reality,  the 
church  must  obviously  be  separate  from  the  state  in  such  a 
sense  that  its  interests  are  not  the  same,  and  it  often  has  to 
resist  the  state's  injustice.  Ikit  even  when  the  state  is  per- 
fectly Christian,  will  it  follow,  because  the  state  is  in  perfect 
harmony  with  the  church,  that  therefore  they  are  identically 
one  ?  Or  will  it  even  follow  that  the  state  will  then  absorb  or 
supersede  the  church  ?  The  notion  of  such  unity  seems  to 
be  derived  from  Hooker,  but  to  be  put  in  a  peculiarly 
beautiful  light  by  Arnold,  and  his  bright  ideal  misleads 
him. 

The  true  statement  is,  that  as  every  state  has  its  own  local 
sphere,  so  it  has  its  sphere  of  work  and  action,  beyond  which, 
within  its  territory,  it  ought  not  to  pass.  So  the  church  has 
its  sphere,  while  Christian  society  and  the  motives  forming 
character  are  universal.  The  instinctive  sense  of  what  is  his 
part  will  confine  the  perfect  man  within  his  own  department, 
and  the  same  good  sense  will  adjust  the  limits  between  state 
and  church  action  ;  but  a  perfect  state  of  society  would  not 
remove  or  obliterate  the  limits,  for  they  are  founded  in  the 
nature  of  man  as  a  creature  under  law  and  under  religious 
obligations. 


494 


POLITICAL  SCIEXCE. 


Mr.  W.  E.  Gladstone,  in  1838,  published  his  treatise  on 
Gladstone  on  the  "  tlic  statc  in  its  rclations  with  the  church," 

relations  of  church         i  .    ,  11  i  ... 

and  state.  which  sooH  passcd  through  several  editions. 

We  use  the  fourth  (2  vols.,  1841).  It  is  a  thorough  practical 
treatise,  and  after  an  introduction  giving  some  of  the  prevalent 
theories  held  in  England  in  regard  to  these  relations,  considers 
the  following  points  :  the  duty,  the  inducements,  the  ability 
of  the  state  in  respect  to  religion  ;  the  function  of  the  state  in 
the  choice  and  in  the  defence  of  the  national  religion  ;  the 
subsisting  connection  between  the  state  of  the  United  King- 
dom and  the  church  of  England  and  Ireland  ;  the  reformation 
as  it  was  related  to  the  doctrine  and  practice  of  private  judg- 
ment; this  doctrine  and  practice  of  private  judgment,  as  it  is 
related  to  the  union  between  church  and  state.  These  are 
followed  by  details  of  the  existing  administrative  practice  in 
ecclesiastical  affairs,  and  a  chapter  on  the  ulterior  tendencies 
of  the  movement  towards  the  dissolution  of  the  connection 
between  church  and  state. 

Mr.  Gladstone's  theory  in  regard  to  this  connection,  in  its 
leading  outlines,  may  be  stated  as  follows.  A  common  life 
demands  a  common  religion,  in  order  to  balance  its  dangers 
and  tendencies  towards  positive  evil.  There  are  two  forms 
of  common  life  according  to  nature,  the  family  and  the  state. 
The  state  has  a  moral  office  and  a  conscience  or  state  duty, 
"  and  the  lawgiver  has  the  same  need  to  be  ethically  instructed 
as  the  individual  man  "  (chap,  ii.,  69).  "  Religion  is  appli- 
cable to  the  state,  because  it  is  the  office  of  the  state  in  its 
personality  to  evolve  the  social  life  of  man,  which  social  life 
is  essentially  moral  in  the  ends  it  contemplates,  in  the  subject- 
matter  on  which  it  feeds,  and  in  the  restraints  and  motives  it 
requires  ;  and  which  can  only  be  effectually  moral  when  it  is 
religious.  Or,  religion  is  necessary  to  the  right  employment 
of  the  state  as  a  statc  "  (chap,  ii.,  74).  And  the  nation,  in- 
asmuch as  it  "fulfils  the  great  conditions  of  a  person,  a  real 
unity  of  being,  of  deliberating,  of  acting,  of  sufifering,  and 
these  in  a  definite  manner  and  upon  an  extended  scale,  and 
with  immense  moral  functions  to  discharge,  and  influences  to 


THE  state's  relations  TO  RELIGION, 


495 


exercise  both  upon  its  members  and  extrinsically,"  has  there- 
fore such  a  "  clear,  large,  and  conscious  responsibility  as  can 
alone  be  met  by  its  specifically  professing  a  religion,  and 
offering,  through  its  organ,  the  state,  that  worship  which 
shall  publicly  sanctify  its  acts  "  (ib.  87).  All  this  is  con- 
firmed, when  the  state  is  felt,  under  the  teachings  of  the  scrip- 
tures, to  be  a  divine  ordinance  and  eminently  such,  and  when 
religion  appears  in  the  distinct  form  of  the  Christian  revela- 
tion. Moreover,  as  Christianity  is  a  principle  of  life,  intended 
to  govern  and  pervade  all  life,  must  it  not  govern  and  pervade 
our  human  common  life,  our  association  in  the  family  and  in 
the  state  ?  The  state  and  the  church  have  both  of  them , 
moral  agencies.  But  the  state  aims  at  character  through  con- 
duct;  the  church  at  conduct  through  character;  in  harmony  ^/ 
with  which  the  state  forbids  more  than  it  enjoins,  the  church 
enjoins  more  than  it  forbids.'^ 

"The  powers  of  church  and  state  arc  coordinate;  and/ 
each  is  ordained  to  ends  included  within  the  purview  of  the 
other.  The  state  is  a  moral  being  and  must  worship  God 
according  to  its  nature  :  it  is  thus  intrinsically  competent  to 
promote  the  ends  of  religion  and  extrinsically  it  has  effective 
means  of  aiding  them  ;  in  both  respects  it  is  morally  bound 
to  render  that  assistance.  As  on  the  other  hand  the  ministry 
of  religion,  whether  under  its  general  or  its  Christian  idea,  is 
able  in  many  ways  to  promote  the  purposes  of  the  state  " 
{ib.,  102). 

A  union  by  law  being  assumed  between  state  and  church, 
what  shall  that  church  be?  Mr.  Gladstone  says  that  "on 
any  other  than  specifically  Christian  principles,  the  human 

*  Hut  tlie  state's  iinincdiatc  si)here  is  jural,  and  obli<;ation  consists 
chietly  in  not  violating  rights.  It  could  not  be  otherwise,  unless  the 
state's  sphere  were  so  enlarged  as  to  include  all  Mioiai,  nay,  all  religi- 
ous teaching  also  within  its  province.  On  the  other  hand  the  religious 
teacher  .says  :  "  man,  who  made  me  a  judge  or  a  ruler  over  you,"  and 
"render  unto  Caesar  the  tilings  that  are'  C;esar's,  and  imlo  Cod  the 
things  that  are  Clod's."  He  supplies  motives  for  all  right  action,  cs- 
l)ecially  for  right  action  in  the  state,  but  docs  not  act  as  an  oflicer  of 
the  state. 


496 


POLITICAL  SCIENCE. 


understanding  would  probably  incline  to  the  theory  of  a 
plurality  of  establishments  ;  "  on  t/iosi-  it  can  only  support  a 
Christian  one.  Can  it  support  more  than  one,  for  instance,  a 
number  of  competing  forms  of  the  Christian  faith,  which  per- 
haps do  not  acknowledge  each  other  to  be  branches  of  the 
true  church?  He  thinks  [il?.,  iii.,  122)  that  "if  there  be 
between  any  set  of  distinct  religious  communions  not  merely 
a  nominal  but  a  substantial  dift'erence  of  doctrine — the  idea 
of  union  with  more  than  one  is  fatally  at  variance  with  the 
idea  of  personality  and  responsibility  in  the  government  as 
the  organ  of  the  national  life."  x\nd  again,  he  says,  "  that 
the  practice  of  manifold  or  indiscriminate  establishments 
tends  to  throw  public  office  more  and  more  into  the  hands  of 
the  unscpruulous  and  thus  aggravate  the  disorder  from  which 
it  took  its  rise  "  {id.,  112). 

Such  is  the  general  defence  of  a  connection  between  the 
state  and  some  church,  and  among  the  competing  claims,  the 
inducements  are  strongest  in  favor  of  "  the  one  Catholic  and 
Apostolic  church  which  providentially  still  holds  and  promises 
to  hold  among  us  [in  England]  the  double  sanction  of  ordi- 
nance human  and  divine  "  (chap,  iii.,  36). 

The  views  of  Mr.  Gladstone  in  regard  to  the  need  of  reli- 
gion for  the  well-being  of  the  state,  to  the  duty  of  those  who 
are  entrusted  with  its  government  to  act  on  the  highest  reli- 
gious principles,  to  the  power  of  Christianity  to  supply  those 
principles,  we  readily  accept ;  but  it  is  still  a  question  in  what 
way  these  great  objects  are  to  be  secured.  Might  not  all  this 
be  true  and  yet  state  and  church  best  promote  their  common 
and  separate  interests  on  the  plan  of  entire  independence. 
Suppose  even  a  revelation  from  heaven  to  be  made  to  a 
statesman  in  a  Christian  land,  enforcing  the  supreme  impor- 
tance of  religion,  and  declaring  that  one  particular  church  is 
either  the  only  scriptural  or  at  least  the  best  form,  might  not 
the  statesman  want  still  further  light  as  to  the  relations  of 
this  church  and  the  state.  Might  not  a  further  revelation, 
without  inconsistency  with  the  earlier  ones,  declare  that  there 
must  be  no  organic  connection  between  the  two  powers ;  that 


THE  state's  relations  TO  RELIGION. 


497 


the  best  church  and  the  most  Apostohc,  when  standing  alone, 
had  the  best  prospects  of  success  in  the  long  run,  and  was 
eminently  under  the  divine  protection. 

The  subject  then  becomes  a  practical  one  exclusively.  Of  v 
the  subjects  which  meet  us  at  this  stage,  such  as  the  evidence 
from  opinion  in  the  past,  both  Christian  and  other,  the  evils 
of  establishments  from  persecution  and  exclusion  of  dissidents, 
the  evils  of  the  voluntary  principle,  when  it  is  exclusive,  Mr. 
Gladstone  treats  in  the  subsequent  chapters,  but  we  have  no 
time  to  follow  him  further.  One  remark  only  we  make  in 
leaving  this  and  other  works  on  church  and  state  from  the 
English  point  of  view.  It  is,  that  the  practical  good  sense  of 
the  nation  has  decided  two  points  in  the  course  of  time :  the 
first,  that  two  establishments  may  coexist  in  two  countries 
under  one  sovereign,  both  of  them  sustained  and  protected 
by  parliament,  which  cannot  be  both  right  on  the  theory  of 
the  Jus  dii'Viiivi  of  church  government,  if  there  be  any  jus 
diviuuin  ;  and  the  second,  that  when  an  establishment  like 
that  in  Ireland  has  ceased  to  be  needed,  it  maybe  suppressed 
and  pass  out  of  the  state's  control.  Thus  it  is  shown  that 
while  the  dissenting  churches  on  the  voluntary  system  are 
permanent,  as  far  as  public  law  is  concerned,  the  great  Eng- 
lish church  may  be  overthrown  by  parliament,  or  be  subjected 
to  such  legislation  that  its  best  friends  may  wish  for  it  a  per- 
manent separation  from  the  state. 

<^  261. 

It  has  appeared  from  the  foregoing  statements,  that  all  states 
until  quite  recent  times  have  provided  for  the 

Conclusions.  ... 

religious  wants  of  the  communities  included  in 
them,  and  that  lawgivers  have  felt  this  to  be  a  part  of  their 
office  when  called  upon  to  construct  or  reconstruct  plans  of 
government.  It  has  appeared  that  Christian  thinkers  have 
shared  this  opinion  with  the  philosophers  and  sages  of  the 
heathen,  that  it  has  been  felt  to  be  not  only  a  funct;;  n  which 
the  state  might  perform,  but  which  it  ought  to  perform,  and 
that  the  religious  wants  of  the  poor  call  for  this  state  ;.ssis- 
VOL.  II. — 32 


498 


POLITICAL  SCIENCE. 


tance.  It  has  been  felt  even  that  a  state,  being  a  moral  per- 
son, must  follow  its  convictions  in  acknowledging  God's  being 
and  providence,  as  also  that  a  Christian  state  ought,  in  its  in- 
stitutions, to  acknowledge  Christ.  And  even  in  states  which 
have  no  religious  establishment,  like  the  United  States,  the 
practice  has  long  prevailed  of  setting  apart  annually,  by  pro- 
clamation of  the  chief  magistrates,  days  of  thanksgiving  and 
of  fasting,  of  opening  meetings  of  the  legislature  by  prayer, 
of  having  chaplains  in  the  army  and  navy,  in  prisons,  public 
asylums  and  hospitals  ;  in  short,  there  is  a  recognition  by  the 
community  to  which  no  one  is  forced,  of  a  divine  law  and  of 
a  revelation.  It  is  to  be  hoped  that  this  will  continue  to 
the  end  of  time,  and  that  no  tithing  of  the  mint,  anise,  and 
cummin  of  a  theory  will  interfere  to  procure  its  abandon- 
ment. 

We  have  already  admitted  that,  to  provide  for  the  religious 
wants  of  a  people  on  the  supposition  that  all  rights  are  re- 
spected, is  as  much  within  the  competence  of  a  state  as  to 
establish  a  system  of  education.  And  if  compulsory  educa- 
tion is  no  violation  of  the  rights  of  parents,  but  rather  a  de- 
fence of  the  rights  of  children,  it  would  seem  to  flow  from 
theory  that  children  should  have  religious  instruction  furnished 
to  them  by  the  state,  if  their  parents  do  not  provide  it  for  them. 
And  to  this  we  add  that  in  many  communities,  as  in  the  mid- 
dle ages  when  the  Catholic  system  was  uniformly  held,  or  in 
the  colonies  of  New  England  and  Virginia,  where  the  new  set- 
tlers were  all  of  one  way  of  thinking  and  worshipping,  a  state 
religion  could  violate  no  rights  of  conscience,  and  might 
otherwise,  if  the  ministers  of  it  were  not  controlled  unduly  by 
the  state,  do  great  good.  In  heathen  lands,  the  state  religion 
could  not  be  oppressive,  except  where  caste  prevailed,  and 
wherever  new,  outlandish  rites  awakened  the  suspicions  of 
the  government;  for  every  man  had  his  own  special  objects  of 
worship,  and  the  rites  of  the  public  cultus  were  mere  shows 
and  forms.  But  it  is  very  different  with  monotheistic  religions. 
They  are  in  their  own  nature  exclusive.  They  must  look 
with  repugnance  on  the  association  in  worship  of  finite, 


THE  state's  relations  to  religion. 


499 


changeable,  half-human  entities  and  the  infinite  being;  with 
disgust  on  mythologies  such  as  have  been  shaped  by  human 
imaginations,  and  on  the  embodying  of  religious  thought  in 
material  forms  for  purposes  of  worship.  There  is  such  an 
entire  opposition  between  the  two  systems  that  they  can 
scarcely  exist  side  by  side.  One  or  the  other  must  take  pos- 
session of  the  state  and  rule  alone. 

Christian  monotheism  differs  from  Jewish  and  Mohammedan 
Nature  of  Christian  at  Icast  in  dcgrcc — in  this,  that  by  the  grand 

ity  produces  diver- 

g.ncesof opinion,  doctrmcs  of  the  incarnation  and  of  redemption 
it  has  awakened  the  human  mind  to  inquire  into  problems  far 
transcending  human  speculative  power,  and  for  which  the 
sacred  books  provided  no  solution.  Thus,  as  man  will  spec- 
ulate, there  have  been  divergences  of  opinion  on  sundry  meta- 
physical points,  some  of  them  called  orthodox,  some  hetero- 
dox, which,  owing  to  their  connection  with  the  moral-religious 
parts  of  Christianity,  have  had  a  great  importance  attached 
to  them,  or  in  their  own  nature  are  possibly  hostile  to  the 
central  ideas  of  the  system.  In  addition  to  this,  in  the  New 
Testament  we  find  only  the  crnda  exordia  of  church  govern- 
ment, on  which  new  institutions,  with  extremely  slender  au- 
thority for  them  in  the  apostolic  records,  have  been  built  up. 
Hence,  especially,  more  earnest  discussions  and  more  com- 
plete separations  have  proceeded,  which  the  claims  of 
conscience  and  of  private  judgment  in  religious  matters  have 
helped  forward  ;  some  contending  that  nothing  besides  what 
is  found  in  the  New  Testament  can  serve  as  a  rule  of  church 
order ;  others  that  whatever  is  not  contrary  to  the  words  or 
spirit  of  Scripture  can  be  engrafted  on  the  forms  of  outward 
religion  ;  and  others  still  that  the  church  as  a  unity,  being  ani- 
mated by  the  spirit  of  God,  can  explain  or  develop  doctrine 
and  enact  rules  for  practice.  And  when  we  add  to  these 
causes  of  division  those  which  arise  from  the  different  signifi- 
cations given  to  the  two  simple  rites  instituted  by  Christ,  we 
see  that  many  differences  of  opinion,  some  of  them  irrecon- 
cilable, some  attacking  the  authority  of  the  state,  have  arisen 
in  the  world  out  of  the  simple  gospel  of  the  New  Testament. 


500 


POLITICAL  SCIENCE. 


All  this  shows  the  grandeur  and  richness  of  Christianity — 
Evils  of  union  of  ^^^^^  it  is  too  great  in  its  conceptions  to  be 
church  and  state.  gfaspcd  by  the  human  mind,  and  is  capable 
of  taking  many  forms  with  one  substratum.  But  does  it  not 
show  also  that  state  laws,  founded  on  distinctions  derived 
from  orthodoxy  or  from  a  certain  standard  of  church  order,  are 
nugatory — nay,  rather  that  they  must  intensify  dissension  into 
bitterness,  divide  society,  and  perhaps  threaten  the  very  ex- 
istence of  the  state  ?  That  (with  all  this)  in  certain  circum- 
stances a  state  church  on  a  free  footing  for  dissenters  may  be 
endured,  or  may  be  a  blessing,  is  admitted.  But  let  us  look 
at  what  state  laws  touching  religion  have  done  or  left  undone. 

They  have  influenced  national  policy  disastrously,  so  that 
the  leading  causes  in  the  war  with  the  Albigenses,  the  Huss- 
ite war,  the  thirty  years'  war,  the  English  rebellion,  were 
religious.  It  does  not  seem  probable  that  mere  differences  of 
confessional  opinion,  for  instance,  in  the  thirty  years'  war, 
would  alone  have  brought  on  that  scourge  of  Germany  ;  but 
the  connection  of  the  churches  with  the  state  certainly  had 
much  to  do  with  the  evil. 

They  have  forced  compliance  with*  ceremony  and  ritual  ; 
and  punished,  even  with  death,  persons  who  wrote  against 
the  state  churches.  In  England,  for  a  long  time  they  shut 
out  men  from  parliament — men  otherwise  qualified  for  serving 
the  state — by  the  condition  of  taking  the  sacrament  according 
to  the  forms  of  the  English  church.  This  act,  it  is  true,  was 
continually  suspended  in  order  to  admit  conscientious  dissent- 
ers into  the  Commons  ;  but  it  was  a  farce  and  a  shame  to 
keep  such  a  law  on  the  statute-book,  if  it  ought  not  to  have 
been  put  in  force.  They  have  also  shut  out  from  the  privi- 
leges of  taking  degrees  in  the  universities  all  who  could  not 
profess  a  faith  in  the  articles  of  the  established  church. 

They  have  established  a  church  to  which  scarcely  a  half  of 
the  inhabitants  who  go  to  church  belonged. 

They  have  intensified  religious  rancor  and  hatred  among 
the  people,  by  lowering  the  estimation  of  dissenters  and  mak- 
ing them  socially  an  inferior  class. 


THE  state's  relations  TO  RELIGION.  501 


They  have  acted  unfavorably  on  establishments  themselves, 
by  taking  away  many  of  the  motives  for  religious  activity  ; 
they  have  destroyed  the  independence  of  the  clergy  by  mak- 
ing ecclesiastical  dignities  dependent  on  government  ;  they 
have  made  religious  livings  matter  of  sale,  and  enticed  bad 
men  into  the  church  by  the  hope  of  promotion. 

They  have,  in  some  countries,  made  the  right  of  remaining 
in  the  country,  for  dissenters  from  the  state  church,  to  depend 
on  the  will  of  the  sovereign.  We  have  referred  to  the  30,cxx> 
Protestants  driven  from  Salzburg  by  the  prince-bishop.  The 
emigration  after  the  revocation  of  the  edict  of  Nantes  furnished 
20,000  new  inhabitants  to  the  elector  of  Brandenburg's  do- 
minions, and  sent  15,000  noblemen  of  the  Huguenots,  besides 
vast  numbers  of  others,  to  various  parts  of  the  world.  More 
than  100,000  are  said  to  have  perished  in  Languedoc  during 
the  Dragonades.  Even  emigration  w£L3  forbidden,  on  pain  of 
being  sent  to  the  galleys. 

They  have  prevented  intermarriage,  and  in  some  cases 
transmission  of  property. 

They  have  caged  together  in  one  establishment  opposite 
beliefs,  or  led  men  to  sign  subscriptions  hypocritically,  or 
produced  a  positive  hatred,  in  the  literary  class,  to  Christianity. 
We  are  in  favor  of  the  largest  liberty  needed  by  tender  con- 
sciences consistent  with  the  genius  of  Christianity,  and  of  a 
comprehensive  church ;  but  it  is  a  great  snare  to  sign  articles 
meant  to  be  articles  of  faith,  without  the  feeling  of  agreeing 
with  them  at  least  in  substance. 

They  have  given  rise  to  the  Inquisition,  to  the  High  Com- 
mission court,  and  to  multitudes  of  persecutions. 

On  the  other  hand,  religious  laws  of  the  state  and  establish- 
Estabiuhments  meuts  liavc  not  produced  unanimity  or  pre- 

liave  UiM  of  their  .     j    i-  t  i  .     <         ■  /• 

end.  vented  dissent.    Let  us  test  this  by  the  state  of 

things  in  some  of  the  best  countries  in  the  world.  In  Eng- 
land, where  once  it  was  hardly  respectable  to  be  a  dissenter, 
it  is  estimated  that  one-half  of  the  average  number  of  attend- 
ants on  public  worship  belong  to  this  class  of  congregations, 
where  the  worshippers  themselves  pay  for  all  expenses  on 


502 


POLITICAL  SCIENCE. 


account  of  religion.  In  Massachusetts  and  Connecticut,  where 
there  were  unusually  mild  religious  laws,  and  hardly  a  dissenter 
was  found  among  the  original  colonists,  more  than  half  the 
existing  churches  now  belong  to  other  denominations.  It  is 
the  same  with  Virginia. 

These  laws  have  shown  little  forethought  for  the  religious 
wants  of  the  poor.  In  England,  during  the  great  changes 
consequent  on  the  growth  of  manufactures,  some  of  the  old 
parishes  increased  immensely  in  population,  without  any  ade- 
quate provision  for  the  new  religious  wants  of  the  lower 
classes.  This  vacuum,  happily,  was  filled  in  part  by  the  dis- 
senting sects.  Thus  the  great  argument  for  establishments, 
that  the  poor  would  otherwise  grow  up  in  godless  degrada- 
tion, does  not  appear  to  have  much  force.  As  great  an 
amount  of  destitution,  at  least,  has  been  left  unprovided  for 
in  London  and  the  large  towns  of  England  as  in  the  fast- 
increasing  towns  of  this  country,  where  more  difficult  prob- 
lems, arising  from  the  influx  of  foreigners  of  various  national- 
ities, are  to  be  encountered. 

Nor  have  establishments  kept  down  unbelief  either  in  the 
upper  or  lower  classes,  as  both  the  Catholic  and  Protestant 
countries  of  continental  Europe  make  it  abundantly  mani- 
fest. 

Nor,  again,  have  established  churches  secured  discipline 
and  purity  of  Christian  life  even  among  communicants.  In 
the  seventeenth  century,  Lcighton,  after  his  retirement  into 
England  from  his  see,  while  he  thought  that  the  English 
church  was  the  best  constituted  in  the  world  in  relation  to 
doctrine,  worship,  and  the  main  part  of  government,  looked 
on  it,  with  relation  to  the  ecclesiastical  courts  and  the  pastoral 
care,  as  one  of  the  most  corrupt  he  had  ever  seen.  He 
thought,  says  Bishop  Burnet,  whose  words  I  have  used,  "  we 
looked  like  a  fair  carcase  of  a  body  without  a  spirit." 

And  indeed  the  best  movements  for  the  good  of  the  church 
of  England  have  proceeded,  not  from  authority,  but  from 
voluntary  effort.  We  need  only  refer  to  the  vast  sums  con- 
tributed by  members  of  the  established  church  within  a  few 


THE  state's  relations  TO  RELIGION. 


503 


years  for  the  repairs  and  buildin<j  of  churches,  and  for  other 
religious  objects. 

On  the  other  hand,  while  we  freely  admit  that  there  are 
evils  attending  the  voluntary  system,  such  as  rivalries  of  de- 
nominations, and  intrusion  into  provinces  already  occupied, 
the  activity  of  the  system  as  shown  in  the  United  States  is 
truly  surprising.  There  were  estimated  to  be  in  the  United 
States  about  fifty- one  thousand  Protestant  churches  in  1871, 
to  a  Protestant  population  of  thirty-three  millions  and  a  half, 
or  one  to  six  hundred  and  fifty  persons.  Multitudes  of  small 
places  newly  settled  and  poor  are  without  Christian  ordinances. 
The  contest  in  such  circumstances  is  a  long  and  hard  one 
between  the  ignorance  and  helplessness  of  towns  rising  in 
the  wilderness  and  the  energies  of  denominations  to  meet 
their  wants.  The  conditions  are  such  as  have  never  been 
laid  upon  believers  in  the  Christian  religion  before.  Yet 
there  is  no  doubt  that  the  problem  will  be  solved  in  the 
voluntary  way,  and  no  other  efforts  could  have  reached  the 
exigency. 

All  things  look  in  modern  times  towards  the  substitution^/ 
of  the  voluntary  principle  in  religion  for  the  efforts  of  gov- 
ernments to  accomplish  the  same  ends.  In  the  most  truly 
Christian  countries,  such  as  England,  millions  of  pounds  are 
raised  in  this  way  in  order  to  spread  religion  through  heathen 
and  other  foreign  lands.  The  same  zeal  would  be  equal  to 
the  greater  work  of  sustaining  religion  at  home.  I  do  not 
doubt  that  it  would  be  done.  But  I  should  not  wish  to  see 
any  national  church  disestablished,  unless  it  were  a  thing  of 
degrees,  requiring  a  lapse  of  time  for  its  completion.  (Comp. 
§  129.)  On  the  other  hand,  the  voluntary  system  needs  con- 
trol, lest  too  much  property  should  be  concentrated  in  a  single 
spot,  lest  the  rights  of  inheritance  should  be  invaded,  lest 
the  building  of  expensive  church  edifices  should  make  de- 
mands for  contributions  which  ought  to  be  used  for  more 
spiritual  purposes.  A  part  of  this  control  can  fairly  be  exer- 
cised in  the  way  of  taxing  church  property,  of  limiting  the 
amount  that  ecclesiastical  corporations  can  hold,  and  of  mak- 


504 


POLITICAL  SCIENCE. 


ing  bequests  for  religious  objects  in  articiilo  mortis  invalid, 
at  least  beyond  a  certain  amount  121). 

262. 

There  is  one  relation  between  the  state  and  the  church  of  a 
Attitude  of  Prot-  vcry  practical  nature  at  present,  which  needs  to 

estants  towards  the  ii*irT-i  i*i 

church  of  Rome.  bc  considcred  by  itself.  It  is  that  which  exists 
between  all  Christian,  states,  especially  those  in  Europe, 
and  the  religious  power  of  the  Roman  pontiff.  In  the 
United  States  we  can  look  on  this  question  with  some  uncon- 
cern and  impartiality,  for  every  encroachment,  or  seeming 
encroachment,  on  the  constituted  order,  every  movement  on 
a  large  scale,  requiring  combination  of  Catholics,  would  unite 
all  Protestants  together  ;  and  these,  being  six  to  one  Catholic, 
could  control  elections  ;  so  that  the  real  danger  might  be  that 
in  the  contention  of  parties  the  Catholics  would  not  have 
their  fair  rights.  No  exercise  of  spiritual  power  to  the  in- 
jury of  the  state  could  be  of  any  effect  unless  there  were 
some  one  in  the  country  itself  to  carry  it  forward.  If  in 
the  attempt  he  should  do  anything  unlawful,  he  could  be 
punished.  If  he  exercised  his  lawful  rights  as  a  citizen  in 
the  way  of  proselytism,  others  must  exercise  theirs  in  con- 
travention of  his  endeavors. 

But  it  is  conceivable  that,  in  order  to  break  the  tie  between 
his  co-religionists  and  their  civil  rulers,  the  pope  should  adopt 
anew  the  old  measures,  so  long  laid  aside,  of  excommunicat- 
ing princes,  laying  lands  under  an  interdict,  and  stirring  up 
subjects  to  acts  of  disobedience.  If  the  vast  body  of  the 
people  were  with  the  prince  and  the  state  power,  all  that 
could  then  take  place  would  be  unlawful  acts,  separate  or 
combined,  each  demanding  the  same  treatment  as  any  other 
act  in  violation  of  law.  No  new  law  need  be  passed.  But 
perhaps  there  has  been  a  connection  more  or  less  close  be- 
tween the  Catholic  church  and  the  country  in  question.  If 
in  such  circumstances  an  attack  should  be  made  on  state  in- 
stitutions, and  the  struggle  became  one  of  life  and  death,  the 
government  would  bc  compelled  to  do  what  so  many  have 


THE  state's  relations  TO  RELIGION. 


done — cripple  the  church  power  by  preventing  it  from  having 
the  use  of  property,  by  taking  away  the  existing  means  of 
support  ;  in  other  words,  by  coming,  as  far  as  this  religious 
body  is  concerned,  upon  the  plan  of  voluntary  support, 
leaving  to  it  to  do  its  own  work  in  its  own  way,  with  the 
proper  state  provision  against  disloyalty.  As  for  extremes 
beyond  this,  it  must  not  be  supposed  that  a  war  or  insur- 
rection excited  by  ecclesiastical  arts  has  a  right  to  different 
treatment  from  any  other. 

We  cannot  help  feeling,  however,  that  as  the  Roman  power 
has  always  temporized,  so  it  always  will.  Since  the  times  of 
the  nationalization  of  countries  under  one  suzerain,  it  has 
lost  one  means  of  effectual  interference  in  the  affairs  of  states 
— that  of  taking  the  part  of  one  power  in  society  against 
another  power,  of  turning  to  its  own  account  that  strife  of 
elements  that  existed  in  feudal  society.  The  national  feeling 
is  now  so  much  stronger  than  it  was  in  the  thirteenth  century 
that  it  would  surely  prevail  in  a  quarrel  between  the  authori- 
ties of  a  state  and  ecclesiastical  powers.  Nor  can  it  be 
doubted  that  a  common  feeling  would  pervade  Europe  when 
the  question  affected  the  independence  of  states. 

^263. 

We  have  still  two  points  to  determine  :  how  far  ought  the 
Protection  of  reii-  statc  to  go  in  protecting  religious  institutions, 
gious  worship.       j^j^^  any  religious  offences  which  ought 

to  come  within  its  criminal  code. 

I.  Protection  of  worship  can  be  put  on  the  same  ground 
on  which  the  prevention  of  distubance  is  put  in  any  other  case 
when  men  arc  gathered  in  lawful  assemblies,  and  with  ?till 
greater  reason,  because  public  worship  is  a  great  end,  and  an 
important  means  of  religion,  without  which  the  vast  benefits 
which  the  state  derives  from  it,  and  the  individual  may  derive, 
cannot  be  realized.  The  disturbance  may  proceed  from 
enemies  without  or  ill-disposed  persons  within  the  assembly. 
In  cither  case  it  may  be  repressed  by  ordinary  police  regula- 
tions. 


5o6 


POLITICAL  SCIENCE. 


2.  An  association  like  a  church,  so  vast  and  extensive,  can- 
not do  its  appropriate  work  without  the  power  of  holding 
property.  Here  it  is  subject  to  the  same  laws  in  substance 
with  any  other  corporate  body.  That  it  has  a  right  to  exist, 
that  it  is  a  necessary  corporation,  does  not  take  away  the 
need  of  control  which  is  required  in  the  case  of  other  similar 
bodies.  Here  the  law  may  fix  the  amount  of  property  that 
can  be  held,  as  it  can,  the  amount  that  may  be  bequeathed, 
the  trustees  who  are  to  be  responsible  for  and  to  manage  the 
property,  and  the  purposes  for  which  it  may  be  used.  Being 
also  invested  by  its  very  nature  with  a  power  of  visitation, 
the  state  must  have  complete  power  to  examine  books,  to 
punish  trustees  for  unfaithfulness,  and,  it  may  be,  to  depose 
the  trustees  and  appoint  others. 

3.  The  amount  of  property  capable  of  being  held  for 
church  purposes  may  be  limited.  We  have  already  referred 
to  the  statutes  of  mortmain  ;  and  the  vast  sums  given  by 
dying  persons  to  the  church  "  for  the  good  of  their  souls  "  in 
the  middle  ages,  seem  to  commend  the  rule  that  no  bequests 
for  pious  uses  on  a  bed  of  last  sickness  or  death  ought  to  be 
valid.  The  rule  is  an  equitable  one  for  the  protection  of 
families,  who  have  not  the  same  means  of  influencing  a  dying 
person  that  are  within  the  reach  of  a  minister  of  religion. 
And  any  church,  if  free  thus  to  receive  bequests  from  any 
source  to  any  amount  at  any  time,  might  ere  long  subvert  or 
control  a  state.  The  amount  which  a  testator  ought  to  be 
permitted  to  alienate  from  his  family  (as  we  have  elsewhere 
tried  to  show),  should  be  a  limited  part  of  his  property. 

4.  Again,  it  has  been  contended  in  this  country  that 
edifices  of  religion  ought  to  be  subject  to  taxation,  while 
school-houses,  hospitals,  and  all  properly  charitable  institu- 
tions, as  well  the  buildings  as  the  funds  yielding  income, 
should  not  be  taxable.  The  arguments  are  drawn  from,  and 
enforced  by,  the  expensiveness  of  church  buildings  in  this 
country,  by  the  consideration  that  less  capital  will  be  put  into 
a  dead  shape  if  a  small  tax  is  levied,  and  by  the  inevitable 
shyness  that  prevails  in  regard  to  the  connection  between  state 


THE  state's  relations  TO  RELIGION.  507 

and  church,  which  shows  itself  in  many  absurd  notions.  The 
amount  of  capital  put  into  church  buildings,  thus  far,  is  said 
to  be  not  more  than  4  or  5  per  cent,  of  the  whole  capital  in 
the  country,  and  is  not  likely  to  increase  relatively  to  the 
whole  amount.  A  tax  would  be  apt  to  deter  a  poor  com- 
munity from  erecting  even  a  decent  building  for  worship,  per- 
haps would  lead  to  delays  in  building  which  the  society  in  the 
place  would  feel  to  its  extreme  disadvantage,  and  by  raising 
pew-rents  would  deter  numbers  from  partaking  in  the  benefits 
of  religion.  The  amount  of  taxes  being  increased  by  those 
levied  on  the  houses  of  worship  would  tend  to  lower  the 
salaries  of  ministers,  which  in  the  country  towns  are  now 
quite  low  enough.  For  such  reasons  a  tax  on  church  edifices 
in  general  ought  to  be  rejected,  as  every  way  injurious  ;  but 
if  one  were  levied  on  edifices  costing  beyond  a  certain  amount, 
it  would  seem  to  be  no  hardship — at  least,  if  the  rule  were  to 
be  adopted  in  regard  to  buildings  to  be  erected.  Burial- 
grounds  attached  to  churches,  manses,  church  schools,  and 
church  hospitals,  ought  to  come  within  a  general  law  affecting 
property  used  for  like  purposes. 

The  purposes  for  which  religious  property  may  be  used  are 
to  a  certain  degree  within  the  control  of  the  law.  The  most 
important  class  of  cases  that  would  here  be  affected  are 
establishments  for  persons  under  vows  leading  a  common 
reHgious  life.  The  objects  for  which  they  arc  congregated, 
whether  they  be  sacred  learning,  or  simply  a  private  religion 
in  common,  or  education,  or  help  of  the  afflicted,  may  be 
highly  laudable;  but,  for  all  that,  it  is  right  that  institutions 
which  have  had  such  histories  as  the  monastic  ones,  which 
good  Catholics  have  condemned  and  Catholic  princes  have 
suppressed,  should  not  have  full  power  to  propagate  them- 
selves over  a  country.  The  considerations,  however,  which 
would  re([uirc  a  limit  to  be  imposed  upon  them,  arc  by  no 
means  narrow  and  sectarian  ;  ihcy  arc  supported  by  the  expe- 
rience on  the  whole  whicji  history  offers  us  when  it  condemns 
such  institutions  on  account  of  the  idle  lives  of  the  inmates, 
and  the  conception  of  character  which  such  a  kind  of  piety 


5o8 


POLITICAL  SCIENCE. 


is  apt  to  plant  in  the  minds  of  a  nation.  Perhaps  the  best 
way  of  managing  them  might  be  to  fix  a  Umit  of  property 
and  reserve  the  power  of  suppression  to  the  state. 

5.  Apart  from  these  more  striking  cases,  there  are  multitudes 
of  others  where  questions  touching  the  church  or  churches  of 
a  land  must  come  before  the  courts.  Such  are  disputes  be- 
tween rival  sets  of  trustees  touching  the  right  of  managing 
religious  property  ;  questions  touching  the  contract  between 
a  minister  and  a  people  in  regard  to  the  payment  of  his  salary, 
or  to  other  points  in  the  contract  of  settlement  ;  questions  of 
orthodoxy  in  a  case  where  a  certain  part  of  the  pew-holders 
or  church-members  contend  against  a  minister  or  trustees 
that  they  are  untrue  to  their  declarations  of  faith  made  on 
taking  office  ;  or  such  as  relate  to  the  right  to  use  the  church 
edifice  for  certain  purposes  aside  from  religious  worship,  and 
so  on.  Disputes  of  this  kind  must  sometimes  arise  in  vast 
Christian  denominations,  which  are  capable  of  holding  prop 
erty  and  making  contracts.  But  the  principles  of  law  and 
equity  on  which  such  disputes  are  decided  by  state  courts  are 
none  other  than  well  settled  legal  principles,  applicable  to 
similar  cases  arising  in  secular  corporations  and  associations. 
To  which  we  may  add  that  the  courts  are  comparatively  im- 
partial ;  while  church  courts,  where  a  case  strongly  interests 
a  community,  would  be  unsafe  arbiters  and  by  no  means  fit 
to  be  trusted. 


^  264. 

In  many  codes  of  laws  we  find  crimes  against  religion  pun- 
Crimesa^'ainstre-  ishcd   with    scverity.      Instanccs  drawn  from 
hgion.  Athenian  law  have  been  given  already,  and  it  has 

appeared  what  penalty  Plato  and  Cicero  would  impose  on 
offences  against  religion.  The  author  of  the  treatise  concern 
ing  virtues  and  vices  found  among  Aristotle's  works  (chap, 
vii.,  Didot's  ed.,  ii.,  246),  calls  impiety  or  aaefieia  one  of  the 
three  kinds  of  injustice,  and  defines  it  as  a  fault  towards  the 
gods,  d<xmons,  the  dead,  parents,  and  country.  The  Hebrew 
law  punished  blasphemy,  i.e.,  as  it  is  defined  in  Lev.,  xxiv., 


THE  STATE'S  RELATIONS  TO  RELIGION.  509 


16,  the  crime  of  using  the  name  Jehovah  with  irreverence  and 
abuse,  by  stoning  ;  while  other  kinds  of  cursing  were  left  to 
the  judge  to  visit  with  penalt>'  {ib. ,  v.,  15,  comp.  Exod.,  xxii., 
28).  Other  crimes  against  religion,  as  worship  of  idols  and 
false  gods,  partaking  in  heathenish  worship,  witchcraft  and 
divination,  profanation  of  the  Sabbath,  false  claims  to  pro- 
phetic inspiration,  had  their  appropriate  penalties.  In  the 
laws  of  Manu  crimes  against  Brahmins  are  punished  with 
special  severity.  Thus  "  a  once-born  man  who  insults  a  twice- 
born  with  gross  invectives  ought  to  have  his  tongue  slit,  for 
he  sprang  from  the  lowest  parts  of  Brahma  ;  "  and  "if  he 
mentions  their  names  and  classes  with  contumely,  as  if  he  says, 
'  Oh,  Devadatta,  thou  refuse  of  Brahmins,'  an  iron  st^-le,  ten 
fingers  long,  was  to  be  thrust  red-hot  into  his  mouth."  (viii., 
270,  271;  comp.  273,  283,  Haughton's  Jones' transl.)  The 
laws  of  other  heathen  nations  show  that  religion  was  protected 
by  criminal  law,  but  still  more  does  this  appear  in  Christian 
codes.  Tlie  offences  against  God  and  religion  under  English 
law  may  be  found  in  Blackstone,  book  iv. ,  ch.  iv.  Some  of 
them  are  altogether  obsolete,  others  are  approaching  to  that 
condition.  The  crime  of  apostasy,  or  of  denial  on  the  part 
of  one  who  had  been  a  professed  believer  in  Christianity, 
exposed  the  person  in  question  to  several  disqualifications, 
as  late  as  9  and  10  William  III.,  and  on  a  second  offence  to 
imprisonment  for  three  years.  Heresy,  also,  with  the  writ 
de  heretico  covibnrendo  supporting  the  law,  in  force  until  29 
Charles  II.,  shows  that  protestant  England  followed  Catholic 
precedents.  Blackstone  does  not  wholly  object  to  laws  against 
propagating  heresy.  Laws,  also,  against  nonconformists  and 
papists  were  enacted  to  protect  the  established  church  and 
the  civil  state.  Laws  against  sorcery  and  witchcraft  continued 
until  the  ninth  year  of  George  II.  (1735).  Laws  against  blas- 
phemy, swearing  and  cursing,  simony,  religious  imposture, 
desecration  of  the  Lord's  day  by  work,  are  still,  we  believe, 
on  the  statute  book  ;  and  in  similar  legislation  the  first  Amer- 
ican colonies,  especially  the  puritan,  followed  the  mother- 
country.    But  a  great  part  of  all  these  crimes  have  disap- 


510 


POLITICAL  SCIENCE. 


peared  from  the  statute  books.  I  have  a  code  of  a  puritan 
state  now  lying  before  me,  in  which  the  only  crime  against 
religion  is  blasphemy,  which  is  defined  as  directed  "  against 
God,  either  of  the  persons  of  the  holy  Trinity,  the  Christian 
religion,  or  the  holy  Scriptures,"  and  is  punished  by  a  fine 
of  not  more  than  one  hundred  dollars,  and  imprisonment  for 
not  more  than  a  year.  The  offender  may  also  be  bound  over 
to  his  good  behavior.  This  offense  was  punished  in  1642  with 
death,  which  in  1784  was  changed  to  whipping  and  the  pillory, 
and  in  1821  was  punished  as  it  is  now.  There  have  been  also, 
in  a  small  number  of  states,  disqualifications  for  political  office 
arising  out  of  atheism,  disbelief  in  future  rewards  and  punish- 
ments, or  even  in  the  Christian  religion.  But  all  these  are 
passing  away. 

Why  is  it,  we  may  now  ask,  that  any  offences  against  re- 
ligion are  noticed  by  the  law  of  the  state.  Various  reasons 
may  be  assigned  in  particular  cases.  It  may  be  said  of  the 
Hebrews  that  the  theocracy  made  God  the  ruler  of  the  nation  ; 
the  importance  of  rest  may  be  alleged  for  Sunday  laws  ;  the 
malice  of  sorcery  and  witchcraft  for  laws  against  these  prac- 
tices, and  so  on.  But  I  believe  that  the  original  feeling  was 
that  the  offence  deserved  divine  displeasure  without  any  due 
discrimination  between  the  spheres  and  ends  of  divine  and 
of  human  law  ;  to  which  may  be  added  the  fear  that  the 
divinity  would  not  favor  the  community,  if  his  rights  and 
honor  were  not  protected.  Then  followed  the  true  conviction 
that  faith  in  divine  power  was  a  main  pillar  of  the  state,  which 
naturally  led  to  state  laws  in  favor  of  religion  of  various  kinds, 
the  greater  part  of  which  only  injured  what  they  were  intended 
to  support. 

I.  The  laws  against  blasphemy  rest  on  a  reasonable  foun- 
dation. The  offence  does  not  proceed  from  a  calm  state  of 
mind,  but  from  malignity,  and  it  hurts  the  feelings  of  believ- 
ers in  God  or  the  Scriptures  more  than  it  would  if  the  char- 
acter of  deceased  parents  were  aspersed.  It  serves  no  pur- 
pose whatsoever.  It  destroys  respect  for  religious  truth, 
which  is  a  principal  support  of  the  state.    For  these  reasons 


THE  state's  relations  TO  RELIGION. 


the  unanimity  with  which  the  law  of  Christian  states  forbids 
it  can  be  justified. 

But  no  laws  against  the  propagation  of  opinions  on  religious 
doctrine,  when  these  opinions  are  supported  by  calm  argu- 
ment, can  be  defended,  except  in  the  extreme  case  when  such 
propagation  attacks  principles  which  are  necessary  or  are 
judged  to  be  necessary  for  the  existence  of  the  state  itself. 
Thus,  it  could  not  have  been  regarded  as  worthy  of  blame,  if 
the  pope's  primacy  had  been  attacked  within  the  ecclesiasti- 
cal state,  to  make  such  an  attack  punishable  by  law,  for 
church  and  state  were  bound  up  together.  On  the  same 
principle,  the  theocracies  of  the  Jews  and  of  other  parts  of 
the  world  might  be  protected.  By  the  close  tie  between  the 
religion  and  the  civil  state,  an  offense  against  one  became  an 
offense  against  the  other.  Just  as  words  spoken  against  the 
king  are  actionable  in  a  monarchy  when  similar  words  uttered 
against  a  chief  magistrate  in  a  democracy  would  not  be,  so 
the  theocratic  form  makes  necessary  for  its  own  existence  a 
wider  control  over  human  action  and  even  human  thought. 
The  only  question  can  be,  ought  such  a  government  to  exist  ? 
That  its  existence,  though  exceptional,  may  be  necessary  at 
certain  stages  of  human  culture  and  for  certain  purposes,  I 
should  not  dare  to  deny. 

If  we  pass  beyond  blasphemy,  there  is,  I  believe,  no  crime 
which  is  punished  as  a  religious  crime  directly,  and  as  injuri- 
ous to  society  on  that  account.  2.  Perjury  calls  in,  for  the 
aid  of  testimony  before  courts,  the  belief  in  divine  knowledge 
and  of  abhorrence  of  falsehood.  But  it  is  punished  rather  as 
a  crime  obstructing  the  administration  of  justice,  than  on 
account  of  its  religious  character.  The  state  makes  use  of  a 
faith  in  God  which  the  witness  professes  to  hold,  although 
even  the  existence  of  a  divine  being  may  not  be  mentioned 
in  its  instrument  of  government.  And  it  ptmishes  perjury 
more  than  it  would  naturally  punish  bare  false  testimony  in 
the  same  circumstance,  because  it  is  an  extreme  crime.  3. 
The  violation  of  burial-places  is  a  crime  like  bur;_jlary  against 
human  property  and  public  order  ;  but  a  reason  for  cslima- 


512 


POLITICAL  SCIENCE. 


ting  the  crime  as  being  greater  than  that  of  burglary  might 
lie  in  the  family  affections  and  in  a  certain  veneration  for  the 
departed.  It  is  more  causeless  and  more  against  nature  than 
most  other  crimes  that  men  may  commit.  4.  Sacrilege, 
again,  as  being  properly  the  stealing  or  robbing  of  property 
consecrated  to  sacred  uses  out  of  sacred  places,  and  as  includ- 
ing all  malicious  defacement  and  other  injury  done  to  such 
places,  may  be  called  a  crime  against  property  ;  but  the  feel- 
ing of  mankind  goes  beyond  this  estimate  of  its  guilt.  It  is 
what  blasphemy  is  in  words — an  irreligious  treatment  of 
sacred  things.  The  two  feelings  must  coexist,  and  the  abhor- 
rence of  the  crime  on  religious  grounds  must  to  some  extent 
influence  legislation.  5-  Soi'cery  and  witchcraft  were  most 
righteously  punished,  when  they  were  believed  to  be  means 
of  injuring  life,  and  were  practised  for  the  hurt  of  human  be- 
ings through  devilish  or  dsemoniac  agency  ;  but  the  fault  lay 
in  the  belief  that  these  crimes  drew  any  real  support  from  the 
invisible  world.  With  the  present  opinion  they  would  go 
unpunished,  not  as  not  aiming  to  secure  their  end  by  mali- 
cious practices,  but  as  being  ineffectual  because  no  one  be- 
lieves in  their  efficiency.  6.  And  here  it  may  be  suggested 
that  religious  imposture ,  like  other  kinds  of  imposture,  is 
projierly  amenable  to  the  law.  7.  Finally,  laivs  for  the 
observance  of  the  Lord' s  day  are  justified  only  so  far  as  the 
usages  of  society  render  a  suspension  of  business  necessary 
on  that  day,  and  as  public  meetings  for  quiet  worship  require 
protection  against  noise  and  tumult.  Thus,  all  civil  processes 
and  proceedings  in  courts  may  rightfully  cease,  and  no  en- 
forcement of  payment  of  notes  takes  place  in  most  Christian 
countries.  It  is  of  course  in  conformity  with  the  prevailing 
religious  faith  that  such  laws  are  made ;  but  men  have  a  right 
to  exercise  their  faith,  at  least  when  they  take  part  in  public 
worship.  Resides  this,  a  day  of  general  rest  does  vast  good  to 
soul  and  body,  and  the  legislator  may  rightfully  protect  the 
religious  institutions  of  a  country,  for  the  vitality  of  which 
common  worship  and  a  day  of  rest  are  indispensable,  by 
appropriate  legislation.     Those,  however,  ought  to  be  left 


THE  state's  relations  TO  RELIGION. 


free  to  take  their  own  course  who  pay  no  regard  to  the  Lord's 
day,  if  only  they  do  not  disturb  or  interfere  with  the  rest  or 
worship  of  others. 

On  the  whole,  while  laws  against  irreligious  acts  notice 
them  in  part  on  account  of  their  human  evils,  I  cannot  help 
finding  in  them  another  element,  proceeding  from  religious 
feelings  themselves,  from  reverence  to  the  divine  being  irre- 
spectively of  their  injury  to  human  society.  Man,  in  his 
legislation,  cannot  get  rid  of  his  sentiments  ;  even  in  the  later 
attempts  at  legislation,  when  the  limits  are  more  exactly  drawn 
between  that  which  is  injurious  to  society  in  some  specific 
way  and  that  which  is  sinful,  the  sentiment  will  assert  its  right 
in  defining  crime  or  in  enhancing  punishment. 
VOL.  XL— 33 


CHAPTER  XIII. 


INFLUENCE  OF  PHYSICAL  AND  SOCIAL  CAUSES  ON  POLITIES, 
AND  OF  POLITIES  ON  THE  PEOPLE. 

^  265. 

The  ancient  political  writers  were  wont  to  speculate  on  the 
Influence  of  phys-  powcr  which  phvsical  causcs  exerted  in  shaping 

ical  causes  on  pol-  .  t  /-  r 

ities.  or  changing  the  forms  of  government.    If,  for 

instance,  a  newly  settled  town  or  colony  lay  on  a  noble  har- 
bor with  productive  lands  behind,  a  Greek  would  be  apt  to 
think  that  sooner  or  later  the  place  would  have  a  democratical 
government,  on  account  of  the  influence  of  the  commercial 
class.  On  the  other  hand,  an  interior  town  might  be  kept 
from  the  predominance  of  a  democracy,  and  this  would  be  a 
motive  for  planting  a  new  colony  in  such  a  position.  The 
various  influences  from  external  nature  they  were  well  able  to 
estimate,  and  those  from  race  they  were  disposed  to  estimate 
too  highly,  for  they  set  themselves  with  their  free  institutions, 
arts  and  letters  over  against  the  barbarians,  who  were  fit  only 
to  be  slaves,  forgetting  that  ages  of  cultivation  might  have 
raised  Cappadocians  or  Scythians  more  nearly  up  to  their 
level,  and  rendered  them  fit  to  be  freemen. 

Among  modern  writers,  Montesquieu  was  the  first  to  show 
on  an  extensive  scale  what  the  spirit  and  character  of  laws 
and  institutions  are,  as  exposed  to  various  influeiices,  and  what 
the  qualities  are  which  different  forms  of  polity  cherish.  As 
drawing  attention  to  the  historical  side  of  politics,  the  "  Spirit 
of  the  Laws  "  marks  an  era,  but  the  deductions — where  causes 
so  complex  and  belonging  to  ages  so  unlike  one  another  as 
those  which  give  shape  to  polities — are  often  very  questionable. 
Thus,  it  may  happen  that  laws  and  institutions  may  pass  over 


INFLUENCE  OF  PHYSICAL  AND  SOCIAL  CAUSES.  515 

from  one  kind  of  polity  within  a  race  to  another ;  or  that 
they  may  travel  far  beyond  their  birthplace,  as  Roman  law 
has  helped  to  shape  the  codes  of  a  large  part  of  Europe,  and 
the  jury  has  spread  beyond  its  original  seats.  It  is  dangerous 
to  pick  out  one  cause — a  physical  one,  for  instance — and  assign 
to  it  a  great  share  of  formative  power  in  a  constitution,  for  pres- 
ently religion,  perhaps  introduced  from  abroad,  culture,  arts, 
and  other  forces  will  begin  to  set  up  their  pretensions,  and 
to  claim  a  share,  if  not  the  largest  share,  in  national  progress. 
It  is  difficult,  then,  to  determine  the  relative  weight  of  physi- 
cal and  social  causes,  of  domestic  and  foreign  influences,  of 
political  and  social  ones,  which  everywhere  act  and  react  on 
one  another ;  or  the  power  of  imitation  and  fashion  at  a  cer- 
tain age  and  in  a  certain  country.  Of  course  our  experience 
and  prophecies  founded  on  it  are  very  uncertain  guides  be- 
yond certain  narrow  limits. 

Without  doubt — to  confine  ourselves  now  to  causes  of  a 
physical  kind  acting  on  governments  and  institutions — man 
cannot  escape  altogether  from  the  influences  of  the  external 
world.  The  free  in  his  nature  and  the  necessary  from  without 
must  act  together  in  forming  the  institutions  which  are  the 
results  of  his  choice.  Sometimes  these  forces  concur,  some- 
times they  act  in  opposite  directions  ;  and  in  the  latter  case, 
if  he  has  energy  and  tenacity  of  purpose  enough  to  overcome 
natrure,  it  proves  to  be  his  greatest  friend ;  it  helps  in  the  for- 
mation of  a  national  character  hardened  and  ennobled  by  the 
resistance. 

Let  us  consider  some  of  the  natural  causes,  and  try  to  dis- 
ciimatc.  cover  in  them  an  influence  on  a  polity,  either  to 
originate  or  to  alter  it. 

1.  Influences  of  climate. — The  greatest  extreme  of  cold 
prevents  all  marked  development  of  the  political  instinct. 
There  arc  regions  where  man  lives  on  the  confines  of  death, 
where  his  constant  struggle  is  to  fight  against  nature  and  just 
maintain  life.  In  such  climates  there  can  be  Ifttle  property, 
and  little  new  knowledge  to  stimulate  to  better  methods  of 
labor.    There  may  be  family  life  and  small  societies,  but  the 


516  POLITICAL  SCIENCE. 

difficulties  of  finding  subsistence  scatter  men  over  a  wide  sur- 
face. Thus  states,  properly  speaking,  neither  can  exist  nor  are 
wanted.  Nor  can  there  be  much  improvement  in  condition 
from  abroad,  for  strangers  from  lands  of  higher  civilization 
rarely  go  into  the  regions  within  the  frozen  zones,  and  can 
bring  no  instruments  by  which  industry  can  be  adv'anced, 
since  little  growth  is  possible  in  such  a  climate.  Govern- 
ment, there,  must  be  confined  to  family  and  social  usages, 
and  apparently  would  be  so  confined  within  a  century  or  two, 
if  a  cultivated  race  had  been  driven  into  those  frozen  soli- 
tudes without  opportunity  of  communication  with  their  old 
homes. 

The  other  extreme  of  torrid  climates,  by  making  a  little 
labor  supply  natural  wants,  and  by  enervating  the  body,  de- 
stroys the  principal  motives  to  exertion.  A  little  clothing 
and  fuel,  shelter  from  heat  and  rain,  alone  call  for  contrivan- 
ces to  make  exertion  tolerable  and  light.  Yet  here  the  social 
feeling  gathers  numbers  near  one  another,  unless  in  arid 
regions,  and  the  family  as  well  as  political  institutions  may 
flourish.  If  the  tribe  or  state  is  near  the  coast,  industry  may 
be  awakened  and  civilization  may  come  in  from  abroad.  Yet, 
in  most  of  the  countries  where  the  heats  are  great  almost 
through  the  entire  year,  only  despotic  states  are  found  and 
scarcely  any  political  capacity.  The  climate  is  against  reso- 
lute assertions  of  the  free  spirit,  and  men  of  especial  endow- 
ments or  advantages,  getting  the  power  into  their  hands,  rule 
as  military  tyrants.  Yet  it  is  not  certain  that  such  climates 
in  the  end  will  be  able  to  resist  the  influence  of  civilizing  and 
elevating  causes  imported  from  abroad. 

Between  these  extremes  there  is  a  great  variety  of  temper- 
ate climates,  or  of  such  as  by  the  alternations  of  heat  and  cold 
stimulate  the  inhabitants  to  industry  and  providence.  It  is 
necessary  to  lay  up  stores  for  winter,  and  to  work  in  the 
other  seasons,  if  husbandry  is  the  occupation  ;  and  the  pur- 
suits of  a  nomadic  life  require  attention  through  the  year  to 
the  state  of  the  flocks,  .'uid  to  a  shelter  against  the  extremes  of 
temperature.    If  the  political  forms  of  the  higher  races  arc 


INFLUENCE  OF  PHYSICAL  AND  SOCL\L  CAUSES.  517 

not  developed  here,  the  cause  is  not  owing  to  the  inability  of 
man  to  contend  with  nature. 

2.  Soil. — This  is  important  in  its  political  relations,  from  its 
determining  in  a  degree  the  occupations  of  the  people.  Yet 
many  wild  tribes  make  hunting  or  even  fishing  their  occupa- 
tion, when  the  soil  which  they  control  might  yield  them  a 
rich  variety  of  products.  The  soil  supplies  motives  to  indus- 
try where  exchange  with  neighbors  can  be  carried  on,  and 
determines  thus  in  part  whether  a  people  shall  be  nomadic  or 
agricultural  in  its  pursuits.  The  mode  of  life  in  turn  deter- 
mines in  great  part  the  political  condition.  A  nomadic  peo- 
ple is  composed  generally  of  tribes  with  no  compact  union, 
and  has  no  incitements  to  a  higher  kind  of  civilization,  unless 
some  man  unites  them  together  by  his  superior  genius.  Then 
the  desire  of  conquest,  for  which  their  roving  habits  fit  them, 
may  bring  them  into  new  conditions  of  life  and  effect  a  change 
in  their  political  capacity.  It  is  probable  that  the  Slavic  and 
Germanic  tribes  were  principally  nomads,  and  it  may  have 
been  causes  not  arising  from  their  state  of  life  at  home  that 
led  to  their  change  of  abode  and  ultimately  to  the  alteration 
in  their  political  and  industrial  habits. 

3.  Situation. — This  is  a  cause  which  renders  a  certain  kind 
of  life  easy  or  difficult ;  which  stimulates  or  represses  the 
curiosity  and  the  hopes  of  men  ;  which  opens  the  way  into 
city  life,  or  makes  intercourse  with  remote  parts  almost  im- 
possible in  the  early  periods  of  human  culture  ;  and  which 
thus  indirectly  has  more  influence  on  political  institutions 
than  almost  any  other  physical  condition.  A  navigable  river, 
the  presence  of  the  sea  with  convenient  bays  and  harbors, 
such  a  sea  as  the  Mediterranean,  thrusting  itself  into  the  heart 
of  continents  and  furnishing  access  along  thousands  of  miles 
of  coasts  ;  or,  on  the  other  hand,  interior  table-lands,  high 
mountain  chains,  forbidding  colonists  from  scaling  their 
heights,  have  vast  power  to  quicken  or  retard  knowledge,  inter- 
course, and  the  motives  to  increased  production,  and  to  lead 
to  or  prevent  higher  political  organizations.  Yet  a  certain 
degree  of  knowledge — the  beginning  of  the  art  of  ship-build- 


5i8 


POLITICAL  SCIE^■CE, 


ing,  for  instance,  must  be  presupposed  before  the  favorable 
causes  can  have  effect.  Other  situations  begin  to  manifest 
their  influence  on  the  pohtical  forms  at  a  yet  later  period  than 
these.  The  choice  of  a  place  near  a  good  harbor  for  a  city- 
implies  that  already  navigation  is  profitable  ;  and  the  selection 
of  it  at  a  little  distance  from  the  coast  implies  already  the 
danger  of  hostile  invasions  from  the  sea.  Insular  situations 
and  the  defence  that  islands  furnish  to  their  inhabitants,  help 
colonies  there  to  grow  in  security  from  all  attacks  but  those  of 
pirates.  That  navigation  has  made  progress  implies  the  con- 
centration of  various  useful  arts  in  one  place,  and  here  we 
have  two  sources  of  city  life.  Even  a  barren  rock  may  be 
turned  into  a  city,  if  navigation  and  land  transportation 
across  a  continent  furnish  supplies  for  the  masses  gathered 
together. 

4.  Races. — Some  of  the  leading  physiologists  have  consid- 
ered the  human  race  to  have  a  unity  beyond  that  of  a  com- 
mon nature  with  its  faculties,  sentiments,  and  desires — a  unity 
implying  descent  from  common  ancestors.*  But  the  differ- 
ences of  race  cannot  now  be  assigned  to  their  causes,  and 
the  differences  of  language  are  yet  greater  and  quite  as  inex- 
plicable. To  a  considerable  extent,  again,  races  must  have 
become  mixed  in  remote  ages,  so  that  the  characteristics  of 
race  are  made  yet  more  difficult  of  definition.  Race,  again, 
may  coexist  with  peculiarities  of  climate  in  producing  differ- 
ences where  it  may  be  unsafe  to  assign  to  each  factor  its  share 
in  the  result.  Thus  much,  however,  may  be  said  :  that  race, 
which  must  have  something  to  do  with  external  nature,  is 
attended  with  characteristics  which  are,  if  not  unalterable,  at 
least  slowly  changeable.  Within  the  same  race,  again,  there 
arc  subordinate  characteristics,  and  in  each  nation  of  the  subor- 
dinate divisions  of  the  race,  national  characteristics  which  are 
not  all  due  to  external  nature.  How  strikingly  unlike  the 
Celts,  the  Slavonians,  and  the  Greeks  of  the  one  Indo-Euro- 
pean family.    How  unlike  the  Frenchman  and  the  English- 

*Conip.  A.  von  Humboldt,  Cosmos,  vol.  i.,  p.  361,  Ottc's  transl. 
Lond.,  1848. 


INFLUENCE  OF  PHYSICAL  AND  SOCIAL  CAUSES.  519 


man.  These  differences  cannot  fail  to  have  something  to  do 
with  the  leaning  towards  different  institutions,  with  the  fixity 
or  the  unsteadiness  of  habits,  with  moral  characteristics.  Dif- 
ferences of  mental  and  moral  natures,  such  as  Greece  and 
Rome  show,  appear  in  the  earliest  records  of  the  two  nations, 
yet  they  are  in  language  and  religion  nearer  than  either  is  to 
the  rest  of  their  race.  Race  acts  as  a  predisposing  or  prevent- 
ing cause,  which  may  be  overcome  in  a  long  course  of  time, 
so  that  the  same  political  forms  can  make  their  way  amid  all 
the  varieties  of  races  and  peoples.  The  actual  success  of  mis- 
sionaries in  bringing  individuals  of  all  races  and  tribes  to 
receive  Christianity  with  a  common  understanding  of  its  spir- 
itual ideas,  not  only  shows  the  unity  of  man  in  his  varieties 
of  race,  but  we  may  argue  from  this  reception  of  common 
religious  ideas  and  hopes,  and  from  this  submission  to  a  com- 
mon law  of  life,  that  political  ideas  also  may  circulate  over 
mankind  so  as  to  bring  about,  if  not  the  same  forms  of  govern- 
ment, yet  such  as  are  animated  by  a  common  spirit  of  justice 
and  of  liberty, 

^  266. 

When  a  form  of  government  in  a  country  has  lasted  from 
Influences  of  dif-  '^S^  ^o  age,  it  canuot  fail  to  have  had  a  decided 
traili'ofXr-  influence  of  its  own  upon  the  character  of  the 
nation,  and  to  have  modified  the  other  moral 
causes  that  affect  national  character.    Wc  shall  endeavor  now 
to  sec  if  we  can  find  out  what  these  influences  are,  which  is 
not  always  an  easy  task,  because,  when  a  quality  of  char- 
acter is  prominent  in  a  nation,  it  may  be  that  other  causes 
besides  the  government  have  aided  in  producing  it.  Those 
causes,  for  instance,  may  have  been  of  earlier  origin  than  die 
government  itself,  and  may  be  able  to  stand  their  ground  for 
centuries  against  others  of  an  opposite  character. 

Wc  begin  our  discussion  on  the  influences  of  different  forms 
the  p"r"ndpic  of  goT-  °^  govemmcnts  by  looking  at  Montesquieu's 
ernmcnts.  notcd  rcmarks  upon  their  principles,  which  oc- 

cupy the  third  book  of  the  Spirit  of  the  Laws.    There  is  this 


520 


POLITICAL  SCIENCE. 


difference,  he  says,  between  the  nature  and  the  principle  of 
government :  its  nature  is  that  by  which  it  is  constituted, 
and  its  principle  that  by  which  it  acts.  As  for  the  nature  of 
governments,  which  he  divides — illogically,  as  we  have  seen 
into  the  despotic,  monarchical,  and  republican,  the  latter  in- 
cluding aristocracy  and  democracy, — it  depends,  for  the  first 
species,  on  the  arbitrary  will  and  law  of  the  single  ruler  ;  for 
the  second,  on  the  fixed  and  established  laws  of  the  single 
ruler  ;  for  the  third,  on  the  fact  whether  a  part  or  the  whole 
body  of  the  people  is  possessed  of  supreme  power.  This 
division  is  illogical,  it  is  obvious,  because  there  may  be  aris- 
tocratic and  democratic  tyrannies  as  well  as  monarchical  ones. 
But  of  this  we  have  said  enough  in  another  place,  and  the 
incorrectness  of  the  division  does  not  affect  his  remarks  on 
the  principles  of  a  government.  The  principle  of  despotism 
he  makes  to  be  fear ;  of  limited  monarchy,  honor  ;  of  aris- 
tocracy, moderation  ;  and  of  democracy,  virtue.  At  the  end 
of  the  book  he  is  careful  to  notice  that  these  principles  do  not 
always  actually  exist  and  have  a  controlling  power  in  a  given 
state  ;  but  simply  that  men  ought  to  be  virtuous  in  a  republic, 
to  be  actuated  by  honor  in  a  monarchy,  and  in  a  despotism, 
by  fear  ;  "  otherwise  the  government  is  imperfect,"  that  is, 
does  not  correspond  fully  to  the  conception  implied  in  its 
name.  It  would  be  more  true  to  say  that  the  government 
cannot  sustain  itself  without  the  special  support  of  virtue, 
fear,  etc.,  and  that  if  virtue,  e.g.,  exists  with  fear  in  a  des- 
potism, so  much  the  better  ;  each  of  these  is  a  governing, 
essential  principle,  but  not  the  sole  principle. 

Let  us  look  at  Montesquieu's  explanation  of  his  doctrine, 
in  the  order  in  which  we  have  mentioned  the  four  forms, 
which  is,  however,  the  reverse  of  his  own.  By  fear  he  docs 
not  mean  the  prince's  fear  of  his  subjects  and  ministers — al- 
though a  suspicion  leading  to  vigilance,  something  like  fear, 
must  in  fact  be  his  safety  against  plots — but  their  fear  of  him. 
"  When  the  despot  for  a  moment  ceases  to  lift  up  his  arm,  as 
soon  as  he  cannot  at  once  crush  those  whom  he  has  entrusted 
with  the  highest  places,  all  is  over  with  him."    "  It  is  neccs- 


INFLUENCE  OF  PHYSICAL  AND  SOCIAL  CAUSES.     52 1 


sary  that  the  people  should  be  judged  by  laws,  and  the  great 
men  by  the  caprice  of  the  prince,  that  the  lives  of  the  lowest 
subjects  should  be  safe,  and  the  bashaw's  head  always  in 
danger."  Obedience  in  a  despotism  must  be  unlimited,  and 
rendered  in  a  spirit  of  fear  ;  everything  but  religion  will  be 
made  to  yield  to  the  despot's  will  ;  then  a  higher  fear  coun- 
teracts the  fear  of  him.  Honor  cannot  be  a  principle  of  des- 
potism, for  it  implies  distinction  of  ranks,  and  all  are  on  a 
level  under  a  despot  ;  he  will,  if  he  can,  break  up  a  hereditary 
nobility  and  have  no  distinctions  save  official  ones.  "  Honor 
glories  in  contempt  of  life,"  but  the  prince  expects  to  terrify 
by  having  life  and  death  in  his  hands.  Honor  has  fixed 
principles  which  counteract  the  mere  caprice  of  a  tyrant. 
Honor,  we  might  add,  adheres  on  principle  to  truth,  but  fear 
leads  to  falsehood  and  to  dissimulation.  "  As  for  virtue," 
says  Montesquieu,  "  it  is  not  necessary  there,  and  honor  there 
would  be  dangerous." 

To  this  account  of  despotism,  pure  and  absolute,  there  is 
little,  on  the  whole,  to  object.  It  controls  by  the  meanest 
principles  of  our  nature — it  teaches  universal  falsehood  and 
distrust.  In  the  end  it  awakens  dread  in  the  tyrant's  own 
heart,  makes  him  resort  to  cruelty,  and  then  fills  him  with 
remorse. 

The  principle  of  monarchy  is  honor,  according  to  our 
author,  but  he  is  not  careful  to  give  an  exact  notion  of  what 
he  intends  by  the  word.  It  is  a  quality  which  resides  in  men 
of  rank  and  of  a  noble  descent.  It  aspires  to  preferments 
and  titles,  and  is  therefore  associated  with  this  form  of  gov- 
ernment. Ambition,  which  is  pernicious  in  a  republic,  has 
some  good  effects  in  a  monarchy.  "  It  may  be  called  the 
prejudice  of  every  person  and  rank,  and  is  capable  of  inspir- 
ing the  most  glorious  actions,  and  when  joined  with  the  force 
of  the  laws,  may  lead  us  to  the  end  of  government  as  well  as 
virtue  itself."  "  In  monarchies  policy  makes  people  do  great 
things  with  as  little  virtue  as  is  necessary."  In  well  regulated 
monarchies  almost  all  are  good  subjects,  and  very  few,  good 
men.    The  courtiers  of  his  time  Montesquieu  speaks  of  in 


522 


POLITICAL  SCIENCE. 


the  most  opprobrious  terms.  "  Ambition  joined  to  idleness, 
and  baseness  to  pride  ;  a  desire  of  obtaining  riches  without 
labor,  and  an  a\-ersion  to  truth  ;  flattery,  treason,  perfidy, 
violation  of  engagements,  contempt  of  civil  duties,  fear  of 
the  prince's  virtue,  hope  from  his  weakness,  and  above  all  a 
perpetual  ridicule  cast  upon  virtue,  are,  I  think,  the  charac- 
teristics by  which  most  courtiers  have  been  distinguished. 
So  true  is  it  that  virtue  is  not  the  spring  of  this  government." 

If  one  may  unfold  INIontesquieu's  meaning  more  clearly 
than  he  has  unfolded  it  himself,  he  would  need  to  define 
more  clearly  what  honor  means.  He  would  find  it  necessary 
to  say  that  instead  of  being  a  substitute  for  virtue  it  is  a 
form  of  virtue,  that  it  consists  in  a  delicate  sense  of  the 
value  of  character,  and  a  high  standard  of  character.  It 
is  not  merely  a  purpose  to  conform  to  that  which  public 
opinion  in  the  higher  classes  demands,  but  to  possess  within 
one's  self  the  conception  of  a  noble  character  or  a  character 
thought  by  the  individual  man  to  be  such,  and  the  intention 
to  realize  it  in  life.  The  man  of  honor  hates  all  that  is 
mean,  base  or  unworthy  of  a  man  ;  above  all,  untruthfulness, 
unfaithfulness,  cowardice,  especially  moral  cowardice,  and  is 
ready  to  do  what  is  right  in  spite  of  all  obstacles.  It  is  not 
the  sum  of  virtue,  but  is  an  admirable  and  beautiful  side  of 
it.  Now  this  ideal  of  an  important  quality  can  thrive  best 
among  those  who  are  cultivated  into  a  delicate  sense  of  right 
by  refining  literature,  high  examples,  and  reverence  for  God. 
If  the  highest  class  offers  such  examples,  honor  will  be  more 
keen  there  than  in  other  classes,  if  it  is  corrupt  as  it  was 
under  Louis  XIV.  and  XV.  when  Montesquieu  lived,  or  under 
Charles  II.  of  England,  the  meanest  of  men  will  proceed  from 
such  a  school,  however  high  their  birth  ;  and  the  common 
people  amid  vulgar  employments,  by  the  effect  of  religious 
principles,  will  have  a  higher  standard  by  far  of  real  honor 
than  the  nobility.  That  a  high  standard  among  a  nobility 
may  have  great  power  to  elevate  a  whole  people,  to  make 
them  loyal,  truthful,  courageous,  independent,  and  even  un- 
mercenary,  cannot  be  questioned  ;  but  how  can  one  safely 


INFLUENXE  OF  PHYSICAL  AND  SOCIAL  CAUSES,  523 


say  that  virtue  is  not  needed  as  a  principle  in  a  monarchy  ? 
Could  Montesquieu  have  lived  long  enough  to  see  the  revolu- 
tion in  his  own  country,  he  would  have  perceived  without 
fail  that  the  loss  of  moral  principle  was  one  of  the  leading 
causes  that  brought  it  on. 

267. 

Honor,   or  the  being  "  sans  peur  et  sans  reproche,"  is 
Honor  as  cuitiva-  allied  to  loyalty,  and  the  two  as  special  forms 

ted  under  different  ^  . 

polities.  of  ethical  principle  took  their  rise  in  the  middle 

ages  from  the  ideal  of  a  perfect  knight,  which  was  really  a 
Christian  idea,  and  the  noblest  contribution  of  the  middle 
ages  to  practical  morals.  Loyalty,  however,  was  directed 
towards  a  person,  so  that  now,  wherever  the  people  is  held 
to  be  the  fountain — even  if  only  the  ultimate  fountain  of 
power — its  force  is  somewhat  weakened.  The  only  substi- 
tute is  a  somewhat  more  abstract  system  of  rules  of  honor  ; 
a  standard  of  character  including  the  virtues  already  named, 
and  whatever  others  are  conformed  to  the  true  idea  of  man- 
hood, diffused  through  society  by  means  of  a  high-toned 
literature.  In  this  shape  the  minds,  out  of  which  loyalty  in 
its  old  form  of  personal  allegiance  had  nearly  faded,  could  be 
trained  into  a  truly  honorable  life  both  in  a  republic  and  in  a 
democracy. 

De  Tocqueville  (Democr.  in  America,  ii.,  book  3,  ch.  iS) 
continues  the  speculations  of  Montesquieu  in  the  chapter  en- 
titled "  on  honor  in  the  United  States  and  in  democratic  com- 
munities." His  main  proposition  is  that  "  the  dissimilarities 
and  inequalities  of  men  give  rise  to  the  notion  of  honor ; 
that  this  notion  is  weakened  in  proportion  as  these  differences 
arc  obliterated,  and  with  them  it  would  disappear."  He  lays 
it  down  that  in  "a  democratic  nation  like  the  Americans,  in 
which  ranks  arc  identified,  and  the  whole  of  society  forms 
a  single  mass,  composed  of  elements  which  arc  all  analogous, 
though  not  entirely  similar,  it  is  impossible  ever  to  agree 
beforehand  on  what  shall  or  shall  not  be  allowed  by  the 
notion  of  honor.    As  it  is  imperfectly  defined,  its  inlluence 


524 


POLITICAL  SCIENCE. 


is  of  course  less  powerful.  Public  opinion  can  only  pronounce 
a  hesitating  judgment.  Sometimes  the  opinion  of  the  public 
may  contradict  itself ;  more  frequently  it  does  not,  and  lets 
things  pass."  .  .  .  "  In  aristocratic  countries  the  same  notions 
of  honor  are  always  entertained  by  only  a  few  persons.  .  .  . 
They  apply  its  rules  therefore  with  all  the  warmth  of  personal 
interest,  and  they  feel  (iC  I  may  use  the  expression)  a  passion 
for  complying  with  its  dictates." 

I  have  here  nothing  to  do  with  the  United  States  in  par- 
ticular, except  as  an  example  ;  and  will  only  say  on  that 
point  that  the  delicate  attention  to  the  female  sex,  the  outward 
expressions  of  respect  which  individuals  show  to  one  another, 
the  tender  humanity  which  marks  the  most  cultivated  parts 
of  the  land,  show  at  least  a  susceptibility  to  honor  and  other  , 
refined  sentiments.  As  for  the  rest  if,  as  De  Tocqueville  says, 
the  same  notions  of  honor  arc  entertained  by  only  a  few  per- 
sons, of  what  great  use  are  they  in  a  nation  whose  character 
and  general  life  they  are  thus  unable  to  pervade.  And  if,  as 
happened  both  in  France  and  in  England,  under  Louis  XIV. 
and  his  successor,  and  under  Charles  II.,  the  highest  class 
was  the  basest,  what  stability  or  self-recovering  power  is 
there  in  a  sentiment  or  a  standard  of  character  which  has 
gone  out  of  fashion.  The  better  opinion,  as  it  seems  to  me, 
is  that  the  true  sense  of  honor  rests  on  immutable  moral  sen- 
timents, that  it  decays  with  public  morality  in  an  ill-governed 
community,  that  it  revives  with  an  elevated  philosophy  and 
with  a  return  to  the  standard  of  a  high  Christian  life,  and 
that  then  it  acts  on  life  through  literature  and  example  as 
the  baser  notions  of  honor  had  acted  through  a  base  literature 
and  wdth  a  low  moral  standard  before.  A  democratic  country 
must  be  confessed  to  be  less  favorable  to  the  sentiment  of 
loyalty,  perhaps  to  courage,  and  certainly  to  reverence,  than 
an  aristocratic  one  ;  but  it  has  this  advantage  that  whatever 
is  there  received  as  true  and  manly,  the  impression  spreads 
fast  and  wide,  just  as  the  fashions  do  ;  that  there  are  no  tor- 
pid Ikcotian  classes  from  which  influences  bound  back,  and 
that  while  the  causes  that  act  on  life  and  sentiment  do  begin 


INFLUENCE  OF  PHYSICAL  AND  SOCIAL  CAUSES.  525 


there  in  part  from  below,  they  begin  also  from  above  and 
penetrate  downwards  more  easily.  Unless  then  it  can  be 
shown  that  the  most  refined  classes  in  a  democracy  are  insen- 
sible to  the  feeling  of  honor,  it  will  follow  that  it  ought  to 
have  a  wider  spread  through  society  there  than  elsewhere. 

But  we  return  to  Montesquieu,  who  remarks  that  virtue  is 
necessary  in  an  aristocracy,  but  not  so  necessary  as  in  a  popu- 
lar government.  The  soul  of  an  aristocracy  is  moderation, 
by  which  he  intends  that  the  nobles,  as  a  class,  keep  them- 
selves within  due  bounds,  that  is,  keep  their  place  within 
their  own  order.  "  Such  a  body,  however,  as  this,  can 
restrain  itself  only  in  two  ways  :  either  by  a  very  eminent  vir- 
tue, which  puts  the  nobility  in  some  measure  on  a  level  with 
the  people  [that  is,  keeps  them  from  widening  the  distance 
between  the  common  class  and  themselves],  and  may  be  the 
means  of  forming  a  greater  republic  ;  or  by  an  inferior  virtue, 
which  puts  them  at  least  on  a  level  with  one  another,  on 
which,  indeed,  their  preservation  depends."  The  justice  of 
this  remark  is  made  apparent  by  the  histories  of  many  small 
aristocracies,  in  which  the  upper  class  was  divided  into  fac- 
tions, and  the  weaker  or  more  popular  of  the  two  threw  itself 
on  the  common  people  for  support. 

The  need  of  virtue  in  a  democracy  is  proved  by  Montes- 
quieu from  the  consideration  that  the  same  power  which 
makes  the  law  in  such  a  state  executes  it  also  ;  there  is  no 
superior  will,  when  the  people  is  opposed  to  having  the  law 
enforced,  which  is  able  to  enforce  it ;  yet  without  this  enforce- 
ment the  state  is  undone.  In  a  monarchy  or  an  aristocracy 
the  monarch  who  breaks  the  law  himself,  or  the  upper  class, 
does  not  lose  the  interest  to  maintain  it  as  it  respects  other 
members  of  the  state.  "  When  virtue  is  banished,  ambition 
invades  the  hearts  of  those  who  are  disposed  to  receive  it, 
and  avarice  possesses  the  whole  community.  The  desires  now 
change  their  objects  ;  what  they  were  fond  of  before  becomes 
indifferent ;  they  were  free  while  under  the  law,  and  they 
will  now  be  free  to  act  against  the  law." 

We  cannot,  however,  suppose  a  whole  community  to  be- 


526 


POLITICAL  SCIENXE. 


come  so  corrupt  that  all  will  wish  for  general  license.  All 
the  wealthy,  for  instance,  all  that  are  pursuing  their  callings  in 
peace,  must  feel  their  interests  to  be  at  stake,  and  will  main- 
tain them  if  possible.  No  body  of  men  ever  became  so  cor- 
rupt as  to  rush  into  ruin  ;  it  is  the  predominance  of  evil,  and 
the  hopelessness  of  good,  which  destroy  a  state.  It  would 
be  truer  to  say  that  loss  of  morals,  looseness  of  principle,  will 
destroy  any  state  ;  even  a  despot  could  not  maintain  his 
power,  if  all  his  officers  were  worthless  and  saw  no  advantage 
to  themselves  in  adhering  to  his  cause.  Montesquieu's  great 
mistake  consists  in  thinking  that  any  state  can  long  maintain 
itself  in  a  general  decay  of  morals,  but  he  is  right  in  conceiv- 
ing that  a  democracy  without  virtue  would  perish  soonest. 

§  268. 

We  proceed  to  consider  some  other  results  and  characteris- 
Other  influences  ^'^s  of  different  poHtics,  but  shall  class  them 
of  difterent  polities,  ^j^j^j.  ^^le  general  heads  of  absolute  and  free 

government.  Then  it  would  be  necessary  for  the  sake  of 
completeness  to  take  into  account  also  the  simplicity  of  man- 
ners and  life,  the  amount  of  wealth  in  the  community  and  its 
distribution,  the  vitality  or  deadness  of  religious  faith,  with 
other  influences  widely  acting  on  national  life.  There  is  also, 
as  we  have  discovered  already,  a  great  difference  between  a 
large  community  acting  through  its  representatives  and  a 
small  city-state,  where,  if  the  relative  strength  of  opposing 
and  jealous  'classes  be  not  manifest  to  all  the  citizens,  the 
greatest  political  disorders  may  exist  together  with  all  the 
immoralities  that  grow  out  of  suspicion,  resentment,  and  con- 
stant intrigues.  Civil  war  is  everywhere  full  of  evils,  but  no 
such  deep  degradation  of  any  state  with  a  wide  territory  could 
equal  that  of  the  city-states  of  Greece  as  it  is  depicted  by  the 
great  historian  of  the  Pcloponnesian  war  (Thucyd.  iii.,  82,  83). 

Rome  shows  us  the  necessity  of  cautious  separation  of  the 
causes  lying  in  the  polity  itself,  from  those  which  change  the 
character  of  society  proceeding  from  some  other  quarter. 
The  early  government  of  Rome  after  the  consuls  were  set  up 


IXFLUENXE  OF  PHYSICAL  AND  SOCIAL  CAUSES.  527 

was  in  some  respects  intolerable,  and  the  strife  of  orders 
fierce  ;  yet  how  severe  were  the  morals  of  this  unlettered 
community,  how  sacred  the  marriage  tie,  how  rare  divorce,* 
what  a  spirit  there  was  of  thrift  and  frugality  pervading  the 
Avhole  society.  But  in  later  times,  when  the  polity  was  more 
just  and  equal,  the  morals  were  vastly  worse. 

I.  One  of  the  chief  differences  between  different  govern- 
ments consists  in  the  ease  or  difficulty  with  which  individuals 
can  acquire  wealth  and  change  their  condition  in  society.  As 
wealth  means  the  power  of  self-gratification  in  any  way,  as 
well  as  higher  social  position,  no  motive  can  be  more  compre- 
hensive. There  is  a  stream  of  adventurers  from  the  humbler 
classes,  not  content  with  the  life  their  fathers  have  led,  press- 
ing on  to  fill  positions  in  mercantile  and  professional  life  ;  and 
where  education  is  diffused  in  a  free  country,  their  numbers 
and  zeal  will  be  so  much  the  greater.  If,  as  in  England, 
there  is  a  well-born  and  titled  class  into  which  they  can 
scarcely  hope  to  be  admitted,  this  will  be  a  barrier  in  one 
direction ;  but  the  middle  class,  as  has  been  remarked,  in 
England,  will  be  so  much  the  more  eager  to  raise  themselves 
by  the  pursuits  of  industry  to  an  elevated  position  in  the 
world.  This  class  there  is  the  zone  of  hope,  lying  between 
the  zone  of  listlessness  and  despair,  and  the  zone  of  content- 
ment. 

In  proportion  to  the  power  of  bettering  their  fortune  by 
personal  endeavors  will  be  the  energy,  restlessness,  hopeful- 
ness and  discontent  of  those  who  are  climbing  the  ladder.  In 
a  country  like  the  United  States  this  stimulus  to  exertion  is 
exceedingly  strong  and  far  diffused.  Its  effects  are,  some  of 
them,  very  good,  and  others  very  evil.  It  produces  speci- 
mens of  covetousness,  thorough  carthlincss,  unreflecting  pur- 
suit of  ends  even  by  the  rashest  speculation,  such  as  the 
absorbing  desire  of  the  goods  of  life  naturally  forms.  With 
this  are  joined  the  vices  that  grow  out  of  cupidity,  and  the 

*  Even  if  we  refuse  to  believe  what  D.  Hal.  says,  ii.  25,  or  sup- 
pose, as  we  may,  that  for  other  causes  besides  barrenness  divorce 
was  practiced  before.    Couip.  Gcll.,  iv.  3,  who  gives  his  aiitliority. 


528 


POLITICAL  SCIENCE. 


willingness  to  forego  those  relaxations  from  care  which  would 
partially  relieve  the  gnawing  of  unsatisfied  desire  and  discon- 
tent. Under  the  sway  of  such  eager  hopes  many,  stretching 
themselves  beyond  their  capacity,  or  overtaken  by  public  ca- 
lamities, lose  what  they  gained.  Nor  is  the  hopefulness  and 
restlessness  in  a  democracy  confined  to  business  pursuits. 
As  all  offices  are  open  to  all,  the  aspirants  are  by  far  beyond 
the  number  that  can  succeed.  This  is  one  of  the  causes  that 
act  on  party  and  the  management  of  political  affairs  in  this 
country,  of  which  we  shall  have  occasion  to  speak  in  another 
place. 

The  same  causes  act  in  monarchies  and  aristocracies  where 
all  can  rise  into  wealth  or  distinction,  or,  at  least,  where  there 
are  no  disabilities  imposed  on  individual  effort  by  the  con- 
stitutions. But  there  is  here  more  stability  of  social  position  ; 
the  laborer's  child  grows  up  expecting  to  pursue  his  father's 
craft,  and  a  certain  caste-like  form  is  given  to  life.  Hence 
one  recognizes  here  these  distinctions  of  class  by  distinctions 
of  dress  and  manners,  of  speech  and  turn  of  thought,  while  in 
a  country  of  entire  equalities  individuals  may  differ  vastly, 
but  the  dividing  lines  of  ranks  or  conditions  are  far  less 
marked.  There  is  thus,  although  no  hereditary  line,  yet  a 
fence  which  it  requires  more  than  ordinary  courage  and  hope 
to  pass  over.  Many  instances  may  be  given,  indeed,  of  men 
with  small  advantages  from  birth  rising  from  an  humble  or  a 
middle  condition  by  success  in  business  or  manufactures,  or  by 
professional  or  military  skill  ;  but  these  are  exceptions  rather 
than  rules,  in  states  where  settled  orders  exist.  One  cause 
of  their  fewness  is,  perhaps,  the  neglect  of  the  education  of 
the  lower  classes  which  once  existed  in  countries  where  poli- 
tical and  social  inequalities  are  marked.* 

*  It  ought  to  be  added  that  political  institutions  are  not  the  only 
causes  of  energy,  restfiilness,  and  covetousness,  nor  can  they  alone 
give  rise  to  these  cjualities.  AVhere  profits  are  large  and  land  cheap, 
the  stimulus  to  industry  will  be  great ;  where  land -grows  dear  and 
profits  fall,  there  will  be  more  patience  and  less  of  a  s|)eculative 
spirit.  This  state  of  things  may  exist  under  any  form  of  government. 
It  is  plainly  the  best  condition  for  the  morals  of  a  people. 


INFLUENCE  OF  PHYSICAL  AND  SOCIAL  CAUSES.  529 


2.  The  influence  of  equality  as  it  regards  state  rights  will 
necessarily  be  expressed  in  manners  and  character.  One 
effect  of  it  is  the  higher  character  of  the  lowest  class  where  it 
is  not  depressed  by  the  feeling  that  they  can  never  reach  re- 
spectability. The  possession  of  political  rights,  or  the  pros- 
pect of  reaching  them  by  temperance  and  thrift,  is  a  cause  of 
self-respect,  and  lcac|s  to  the  respect  of  the  rights  of  others. 
This  brings  with  it  a  general  civility  of  manners,  and  caution 
in  regard  to  giving  oft^ense  to  others,  which  free  intercourse 
might  otherwise  make  easy. 

On  the  other  hand,  the  greater  the  equality  of  political  con- 
dition in  a  country,  the  greater  is  the  want  of  reverence.  This 
was  long  ago  remarked  upon  as  a  characteristic  of  Athenian 
democracy,  that  old  age  did  not  meet  with  the  same  respect 
there  as  in  some  other  Greek  states,  that  the  subordination  of 
the  young  to  the  old  was  injured  by  the  institutions  of  the 
city.*  Tlie  same  feeling  is  carried  into  the  outward  manifes- 
tations of  religion,  among  Protestants,  and,  most  of  all,  in 
those  denominations  which  have  a  democratic  government, 
or  are  especially  religions  of  the  people  ;  there  is  a  want 
among  us  of  those  sentiments  of  veneration  and  reverence 
with  which  the  ancients  strove  to  inspire  the  young  by  a  strict 
discipline  of  manners. 

3.  The  more  free  a  state  is  in  its  polity,  the  more  law-abid- 
ing is  the  spirit  of  the  people.  It  is  true  there  may  be  a 
stolid  obedience  in  a  despotism  dictated  by  fear,  ignorance, 
and  a  sense  of  weakness,  as  well  as  a  reverence  bordering  on 
religious  awe,  but  there  is  little  of  a  feeling  such  as  a  free  man 
under  political  institutions  ought  to  entertain  towards  law  and 
its  ministers.  It  may  be  plausibly  said  that  they  who  make 
the  law  and  yet  have  not  reason  and  reflection  enough  to  per- 
ceive the  necessity  of  obedience,  will  be  more  ready  to  break 
the  law  than  others  ;  but  the  institutions  of  a  free  government, 

*Xenoi)hon  (rcsiiubl.  Athcn.,  I.,  ii)  says  that  "at  Athens  a  slave 
will  not  stand  out  of  the  way  for  you,"  aiul  that  in  Laccd;enion  "  niy 
slave  fears  you.  ' 


VOL.  IK — 34 


530 


POLITICAL  SCIENCE. 


as  I  think,  educate  many  men  who  are  quahfied  to  casta  vote, 
into  the  habits  of  obedience.  That  they  chose  the  represen- 
tatives who  make  the  laws  is  surely  no  good  reason  why  they 
should  disobey  the  laws.  Their  sense  of  privilege  will  rather 
identify  them  with  their  country,  and  thus  they  must  condemn 
more  emphatically  whatever  injures  it. 

4.  The  desire  to  be  educated  and  the  extension  of  education 
is  somewhat  in  proportion  to  the  spread  of  political  rights  in  a 
country.  It  is  true  that  in  a  representative  government  there 
is  not  the  same  direct  educating  power  in  the  political  direc- 
tion as  in  a  city-state,  nor  does  reading,  which  a  person  resorts 
to  for  himself,  educate  as  effectively  as  the  ear  and  the  pres- 
ence in  a  public  place  where  many  are  instructed  at  once. 
The  dramas  of  the  poets,  the  works  of  statuaries,  the  plead- 
ings before  the  courts  at  Athens,  the  discourses  from  the 
bona,  were  quickening  in  a  higher  degree  than  any  public 
spectacles  or  entertainments  of  modern  states,  and  thousands 
underwent  tocrether  a  refinement  of  their  tastes,  an  awakening 
of  their  intellects  unknown  in  modern  times.  The  finish  of 
the  best  dramas,  and  of  the  pleas  made  in  law-cases  by  the 
orators,  shows  that  there  was  a  demand  for  highly-wrought 
works  of  great  masters.  This  we  attempt  to  supply  by  schools 
and  colleges,  by  books  and  newspapers,  but  we  fail  to  reach 
the  cultivation  of  taste  and  of  thought  which  was  attained  in 
the  best  days  of  Athens.  But  the  education  offered  to  all, 
and  the  course  of  self-improvement  that  may  follow,  are  the 
results  of  free  government  and  a  thoughtful  religion.  The 
government  is  not  afraid  to  educate  the  mass  of  men  through 
fear  of  their  demanding  political  power  ;  but,  having  conceded 
to  them  the  power,  desires  to  have  them  trained  into  habits 
of  reflection  and  moderation.  The  lower  class  of  the  people 
discover  what  education  can  do  for  their  children's  advance- 
ment, and  think  it  one  of  the  great  blessings  of  a  free  country. 
Then  follow  public  libraries  in  city  and  country,  such  as  are 
growing  up  in  our  land,  and  are  destined  to  become  universal. 
The  opportunities  of  preparing  for  special  employments  in  the 
beautiful  and  the  useful  arts,  by  an  education  at  a  small 


INFLUENCE  OF  PHYSICAL  AND  SOCIAL  CAUSES.      53 1 


price,  are  among  the  chief  advantages  of  the  polities  where 
the  people  govern  themselves. 

If,  on  the  other  hand,  it  were  alleged  that  states  with  a  lean- 
ing towards  aristocracy  neglect  the  education  of  the  common 
people,  it  would  not  be  wholly  true,  as  some  of  the  states  of 
Germany  could  testify.  And  yet,  such  a  wealthy  and  free 
state  as  England,  has,  until  recently,  been  neglectful  in  this 
respect.  I  know  not  how  to  account  for  this,  except  on  the 
hypothesis  that  legislation  being  shaped  for  the  upper  classes, 
the  interests  of  the  lower  were  overlooked,  there  was  a  con- 
servative spirit  which  opposed  the  true  sentiments  of  human- 
ity and  so  far  undermined  the  foundations  of  national  great- 
ness. 

The  education  of  the  people  in  democratic  governments,  and 
indeed  all  the  lower  education  of  modern  times,  is  wanting  on 
the  moral  side,  just  where  a  popular  government  needs  sup- 
port the  most.  One  reason  of  this  has  been  that  education 
fell  into  the  hands  of  religion,  and  religion  was  faithless  to  its 
trust,  or  rather  had  a  false  view  of  what  education  meant.  It 
was,  to  a  great  extent,  the  opinion  of  the  Romish  church,  that 
knowledge  hurt  the  faith  of  the  lower  classes,  that  ignorance 
was  the  mother  of  devotion.  The  religion  that  was  inculcated 
was  the  religion  of  catechisms,  and  of  formulas  of  faith,  not 
the  deep  pure  religion  of  the  New  Testament  where  morals 
and  faith  are  inseparably  combined,  and  from  which  spring 
the  highest  conceptions  of  character.  The  part  of  this  work, 
which  ancient  legislators  assigned  to  states  having  thus  fallen 
into  the  hands  of  religious  teachers,  there  is  great  danger  of 
an  unhappy  division  of  it,  now  that  states  are  feeling  it  again 
to  be  their  office  to  train  or  provide  training  for  the  young. 
On  the  one  side  secular  instruction  stands  by  itself,  on  the 
other,  religious.  Education,  thus,  is  in  danger  of  becoming 
too  exclusively  intellectual,  so  far  as  it  is  directed  by  the  state. 
The  harmony  and  riiythm  of  soul,  the  sense  of  order,  subor- 
dination and  beauty,  which  some  of  the  ancient  states  strove 
to  cultivate — where  arc  these  professedly  made  a  part  of  pub- 
lic education  ?    Where  are  the  public  virtues  and  the  duties 


532 


POLITICAL  SCIENCE. 


toward  the  state  cultivated  in  state  schools  as  they  should  be  ? 
This  fault  of  modern  education  is  greatest  in  democracies. 
Even  the  democracy  of  Athens,  that  humane,  public-spirited 
state,  had  no  public  education  for  the  poor,  except  what  they 
got  from  the  public  exhibitions  of  intellect  and  taste,  which 
were  not  originally  a  part  of  a  system  of  education,  but 
aimed  rather  to  give  pleasure  to  a  highly-gifted  people.  The 
moral  sentiments  akin  to  rhythm,  order  and  composure,  were 
not  directly  cultivated.  How  much  more  in  modern  times  is 
this  neglect  visible.  And  where,  by  means  of  collections  in 
art  accessible  to  all,  and  of  music,  the  people  are  cultivated  in 
their  tastes,  as  is  the  case  in  some  parts  of  Europe,  the  satis- 
faction of  the  eye  and  ear  are  aimed  at  more  than  the  rhythm 
and  elevation  of  the  soul. 

The  reason  why  this  higher  aesthetic  education  seems  to  be 
less  at  home  in  democracies  than  in  some  other  polities,  lies 
perhaps  in  the  individualism  there  prevailing,  which  is  op- 
posed to  order  and  harmony.  The  man  who  is  surrounded 
by  a  kind  of  fence  of  rights,  who,  as  a  member  of  the  body 
politic,  is  under  constant  excitement,  who  is  expected  to  pur- 
sue his  own  way  with  all  his  energy,  is  not  the  man  to  be 
subdued  and  calmed  by  aesthetic  appeals  to  his  sentiments. 
Hence  the  greater  need  to  him  of  a  moral  and  religious  disci- 
pline appealing  to  the  quieter  departments  of  his  soul. 

5.  The  control  of  general  opinion  has  nowhere  a  greater 
sway  than  in  democracies.  Where  society  is  stratified  there 
is  no  opinion  that  circulates  through  the  society,  and  in  the 
lower  strata  of  such  polities  opinion  will  be  ]ocal,  until  the 
means  of  communication  enable  artisans  and  laborers  to  learn 
the  news  and  travel,  and  to  give  and  take  opinions  touching 
their  own  art  and  the  state.  In  the  higher  strata  of  society  a 
sense  of  personal  importance,  if  nothing  better,  qualifies  indi- 
viduals to  defy  the  opinion  of  their  class,  and  thus  a  certain 
freedom  of  action  is  mutually  conceded  by  the  admiration 
which  is  felt  for  moral  courage.  In  democracies  there  is  not  the 
same  amount  of  moral  courage,  because  the  weight  of  opinion 
over  against  the  individual  is  there  greater.    And  as  there  arc 


INFLUENCE  OF  PHYSICAL  AND  SOCIAL  CAUSES.  533 


no  distinct  separating  lines  between  classes,  fashions,  manners 
and  usages  travel  about  with  the  utmost  ease  through  all  the 
portions  of  society.  A  peasant  in  Normandy  retains  the 
costume  of  two  centuries  ago,  perhaps,  while  the  newest 
fashions  from  Paris  for  female  dress  reach  the  chamber-maids 
in  San  Francisco  in  a  few  weeks.  In  more  important  depart- 
ments of  life,  public  opinion  is  almost  tyrannical  in  democra- 
cies. New  usages,  new  habits  are  adopted,  not  on  conviction, 
but  because  others  have  received  them.  It  is  true  that  par- 
ties, sects,  sections,  have  their  own  especial  opinions  which 
are  not  shared  in  by  others  ;  but  within  the  enclosures  the 
opinion  is  often  tyrannical.  This  is  one  of  the  great  defects 
in  democracies,  that  men  are  so  accustomed  to  move  in 
masses,  that  the  control  of  parties  over  their  members  is  more 
intense  than  elsewhere  ;  but  with  the  spread  of  high  and  true 
refinement  this  evil  may  be  somewhat  abated. 

6.  There  is  in  polities,  according  to  the  width  of  their  liberty, 
an  increasing  degree  of  kindness  between  the  classes  and 
members  of  a  community.  Pride  produces  isolation  ;  a  con- 
sciousness of  belonging  to  another  class  separates  men  ;  and 
these  feelings  will  prevent  kindly  intercourse,  unless  the  in- 
terval is  so  great  (as  between  a  freeman  and  a  slave,  for  in- 
stance), that  men  will  understand  their  positions  and  take 
their  differences  as  a  matter  of  course.  Where  there  are 
ranks  of  freemen  having  a  feeling  of  political  equality,  men 
are  most  jealous  and  most  kept  apart.  The  spirit  of  a  democ- 
racy is  such  as  to  reduce  differences  of  claims  to  their  lowest 
point,  and  thus  to  allow  the  spread  of  some  sort  of  fellowship 
through  the  whole  of  society.  I  grant  that  competition  being 
strongest  in  a  democracy  will  make  men  feel  that  others  are 
in  their  way,  and  also  that  a  feeling  of  equality  makes  some 
men  ready  to  invade  the  individual  feelings  of  others  ;  but 
after  ail,  the  obstacles  in  the  way  of  kindness  seem  to  be  less 
than  can  be  found  in  other  politics.  It  can  be  quite  consis- 
tent with  this  that  persons  who  are  not  secure  of  their  posi- 
tion, who  have  perhaps'  raised  themselves  from  a  condition, 
of  which  they  arc  ashamed,  should  keep  aloof  from  their 


534 


POLITICAL  SCIEXCE. 


former  equals,  as  if  reminded  by  them  of  the  past.  But  the 
general  spirit  is  quite  unlike  this. 

7.  The  love  of  show,  of  making  an  outward  display  with 
one's  wealth  is  more  a  characteristic  of  democracy  than  of 
other  polities.  Equality  makes  the  attainment  of  distinctions 
possible  for  all,  and  the  love  of  superiority  always  exists. 
Where  a  man  or  a  family  is  conscious  of  a  high  position,  there 
is  no  great  motive  to  make  outward  demonstrations  of  opu- 
lence, and  where  ranks  exist,  the  lower  classes  either  have  it 
not  in  their  power,  or  would  laugh  at  their  own  set  for  mak- 
ing a  display.  In  a  democracy  the  show  of  wealth  by  house, 
style,  equipage,  is  a  kind  of  coat  of  arms — a  man  thinks  to 
climb  into  a  superior  station  by  it ;  it  is  not  the  pleasure  of 
the  comforts,  but  the  pleasure  of  the  show,  and  above  all,  of 
the  feeling  that  he  is  equal  to  others.  It  is  remarkable  how  the 
humbler  class  of  emigrant  women  in  this  country  will  be  smit- 
ten by  the  desire  to  appear  in  the  streets  on  a  level  in  dress 
with  the  wealthier  of  their  sex.  So  also,  gains  which  are  saved 
in  order  to  found  a  family  in  communities  where  ranks  and 
titles  exist,  are  spent  extravagantly  where  there  are  no  such 
distinctions,  and  there  is  a  reckless  want  of  thrift  introduced 
into  society  which  often  sinks  such  families  after  the  second 
generation.  Frugality  is  considered  meanness,  expensiveness 
is  gentility.  A  cause  concurrent  with  the  polity  may  be  found 
in  the  ease  with  which  fortunes  are  made  in  a  new  country 
like  ours,  but  to  this  cause  alone  this  unfortunate  state  of 
things  cannot  be  ascribed. 

8.  Patriotism  and  public  spirit  are  virtues  which  all  free 
institutions  foster,  but  those  most,  where  the  individual  most 
closely  identifies  himself  with  the  country  or  the  state,  and 
where  permanent  divisions  into  ranks  or  orders  do  not  pre- 
vent the  public  feeling  from  reaching  the  widest  circle  of  the 
community.  Where  the  desire  to  found  a  family  is  strong, 
as  in  aristocratic  republics,  or  where,  as  in  feudal  societies, 
there  is  no  great  idea  of  a  nation  before  the  mind  of  the  indi- 
vidual, something  of  the  edge  will  be  taken  off  from  patriot- 
ism.   It  may  be  said  that  in  small  communities,  where  the 


INFLUENCE  OF  PHYSICAL  AND  SOCIAL  CAUSES.  535 


individual  has  more  of  relative  importance  to  the  public  than 
elsewhere,  patriotism  will  be  most  intense  ;  but  the  concep- 
tion of  one  great  country,  with  one  language,  under  one  law, 
with  one  set  of  institutions,  makes  amends  for  this.  The 
interests  to  be  protected  under  modern  governments  are  so 
vast  and  so  precious,  that  the  feeling  acquires  a  great  support 
from  this  source  also.  The  old  watchword,  pro  aris  et  focis, 
receives  new  energy  in  Christian  lands,  where  multitudes 
cling  with  a  love  unknown  of  old  to  the  family  and  the  church, 
and  where  many  other  unions  add  value  to  the  thought  of 
country. 

As  for  public  spirit,  we  may  say,  I  think,  that  it  varies 
somewhat  with  the  ease  or  difficulty  of  acquiring  fortunes. 
Thus,  in  a  new  country,  where  the  profits  of  capital  are  great, 
a  man  will  readily  relinquish  a  portion  of  what  he  has  earned 
for  public  enterprises  ;  and  to  this  should  be  added  that  pub- 
lic spirit  suggests  a  way  of  distinguishing  one's  self,  where  all 
are  otherwise  equal.  The  amazing  sums  of  money  that  have 
been  consecrated  to  public  objects,  educational,  charitable, 
and  religious,  in  the  United  States,  may  be  assigned  in  part 
to  this  motive  ;  but  the  benevolent  and  religious  spirit  also 
exert  a  great  power. 

9.  The  tendency  towards  multiplying  associations  for  vari- 
ous purposes  increases  with  the  increase  of  freedom.  Of 
course,  where  the  government  fears  the  people,  it  will  put  a 
curb  on  political  clubs,  and  there  will  be  a  general  slowness 
in  undertaking  great  works  requiring  joint  action  and  joint  out- 
lay. You  might  account  for  this  movement  towards  common 
enterprises  by  the  vast  capital  accumulated  in  the  world — 
above  all,  in  old  commercial  countries  such  as  England  and 
Holland,  as  well  as  by  the  protection  offered  to  capital  in  the 
laws  of  all  Christian  states  ;  but  in  countries  where  capital 
is  small  and  where  there  are  openings  for  investment  on  every 
side,  the  same  spirit  of  association  is  manifest. 

10.  The  restless  spirit  engendered  by  perfect  liberty  of 
movement,  and  the  hope  of  bettering  one's  condition,  leads  to 
change  of  place,  to  colonial  enterprises,  to  the  improvement 


536 


POLITICAL  SCIENCE. 


of  the  means  of  locomotion  on  the  land  and  on  the  sea.  The 
Greeks,  with  the  Phoenician  colonies,  the  Italian  republics, 
England,  the  United  States,  are  examples  of  enterprise  en- 
larging its  own  area  and  invading  remote  regions  with  unwea- 
ried energy.  In  this  roving  spirit,  to  some  extent,  the  family 
ties  which  confine  a  man  to  the  neighborhood  of  his  kindred 
lose  their  power.  Yet  the  multitude  of  these  settlers  in  dis- 
tant quarters  are  binding  a  nation  together,  and  we  see  in  this 
country  how  the  feeling  of  relationship  is  a  tic  between  the 
east  and  the  west. 

The  opposite  of  most  of  what  has  been  said  will  apply  to 
despotic  states  in  the  ratio  of  their  despotic  spirit.  The 
government  is  afraid  of  the  people,  and  the  people  of  the 
government.  Men  are  in  a  great  degree  devoid  of  enterprise. 
The  country  people  live  in  ignorance  of  remote  parts  of  the 
country  and  of  remote  regions.  More  courage,  therefore, 
and  energy  are  needed  in  despotisms  by  the  people  to  go 
abroad  for  purposes  of  business,  to  found  colonies,  to  under- 
take public  works,  than  would  be  called  for  under  other  poli- 
ties, since  the  unknown  and  the  distant  are  objects  of  fear. 
Associations  are  discouraged  by  such  governments  lest  they 
should  lead  on  to  dangerous  political  combinations.  Public 
spirit  and  patriotism  have  no  room  to  exist.  Ranks  are  more 
fixed  ;  the  peasant  stays  on  the  land  for  many  generations. 
It  would  be  regarded  by  the  most  enterprising  in  such  a  mo- 
tionless condition  too  great  a  risk  to  leave  their  original  homes 
and  employments.  Between  the  classes  of  society  there  is  a 
great  gulf  fixed  ;  movements  to  overcome  the  barriers  of  birth 
are  frowned  upon  by  the  state,  and  aided  by  no  political 
habits.  A  general  opinion,  except  on  religious  subjects,  per- 
vading all  classes,  is  unknown.  The  encouragements  to  edu- 
cate a  family  are  few,  and  education  must  be  directed  by  the 
government.  The  poor  are  unable  to  acquire  learning  or  to 
rise  into  professional  life.  It  would  seem,  then,  that  in  des- 
potisms, quiet,  order,  a  stolid  contentment,  a  certain  rever- 
ence for  supreme  power  without  love  or  confidence,  must 
pervade  a  community,  unless  the  upper  ranks  and  the  nicrcan- 


INFLUENCE  OF  PHYSICAL  AND  SOCIAL  CAUSES.  537 


tile  classes  be  excepted.  Despotisms  may  have  their  day  of 
transition  into  freedom  when  other  nations  shall  have  worn 
themselves  out,  but  they  must  be  receivers  of  what  political 
good  other  forms  of  government  have  laid  up  for  future  ages, 
and  they  are  now  in  their  childhood. 

II.  The  laws  in  despotic  and  in  free  states  will  be  con- 
formed to  the  spirit  of  the  polities  themselves.  In  this  field, 
which  Montesquieu  was  the  first  to  explore,  we  must  content 
ourselves  with  an  observation  or  two  on  the  political  laws  of 
these  opposite  polities,  or  such  as  have  a  close  connection 
with  the  constitutions.  These  laws  will,  it  is  plain,  be  in- 
tended to  secure  the  polities.  The  instinct  of  self-preserva- 
tion in  a  despotism  will  be  expressed  in  preventing  and 
repressing  all  movements  which  would  be  alarming  to  the 
government  or  to  the  existing  dynasty,  even  if  no  suspicion 
is  felt  of  the  temper  of  the  people.  Lines  will  be  drawn,  if  a 
necessity  is  found  for  them,  around  every  exercise  of  freedom 
in  the  callings  of  life  ;  and  a  rigorous  system  of  police  will,  as 
we  have  noticed  in  the  little  tyrannies  of  Greece  in  the 
Roman  empire  and  in  modern  empires,  have  inspection  over 
all  deviations  from  a  certain  fi.xed  line  which  may  excite  sus- 
picion. It  is  easy  to  see,  and  we  have  already  noticed,  what 
rights  of  civil  life  will  be  most  obnoxious  to  the  spirit  of 
the  government,  and  how  much  fear  will  be  felt  towards  the 
few  political  rights  that  arc  conceded  to  the  people. 

Yet  even  in  despotisms  there  are  breakwaters  from  old 
institutions  or  from  religions  older,  perhaps,  than  the  despot- 
ism itself,  and  there  are  changes  from  social  causes  which  it 
cannot  escape,  and  probably  cannot  foresee.  When  these 
changes  begin  to  be  perceptible,  fear  may  be  awakened  on 
the  ruler's  part  towards  the  nation,  and  then  the  proper  con- 
flict caused  by  apprehension  "  of  change  perplexing  tyrants," 
will  become  perceptible.*  Law  and  administration  will  be 
conformed  to  these  new  fears.    In  this  conflict  the  worst  siilc 

*  Comi).  wliat  Dion  Cass,  makes  .Aj^rippa  say  to  Augustus,  lii., 
§  9:  "  Thosi;  who  now  live  under  tyrannies  arc  always  in  slavery 
and  always  are  [jlotling  against  tlicir  rulers.'' 


538 


POLITICAL  SCIENCE. 


of  tyrannies  will  be  manifested  in  its  attempts  at  self-preser- 
vation. 

Of  the  laws  in  free  communities,  where  the  government 
does  not  fear  the  people,  little  need  be  said.  As  the  people 
either  control  or  essentially  check  the  government,  there  is 
no  fear,  no  diversity  of  interests,  no  perpetual  opposition 
expressed  by  the  laws.  The  dangers  here  are  a  want  of 
vigor  in  executing  the  laws,  and  a  want  of  steadiness  and 
uniformity  in  policy. 

<§.  269. 

It  may  be  questioned  whether  there  is  any  invariable  ten- 
Reiation  of  differ-  dency  in  the  nature  of  a  polity  to  encourage  in- 

ent  polities  to   the  _  x         ->  o 

useful  and  fine  arts,  ventions  and  thc  fine  arts.  As  for  the  practical 
arts  and  inventive  genius,  we  may  affirm  that  they  find  their 
best  field  under  free  institutions.  For,  with  the  increase  of  the 
freedom  of  intellectual  movement,  the  consciousness  of  strength 
and  the  power  to  overcome  obstacles  are  increased,  and  hope 
of  success  is  stimulated  by  the  practical  knowledge  laid  up 
within  the  community  and  accessible  to  all.  The  history  of 
inventions  seems  to  verify  this  remark.  Many  of  them  and 
minor  improvements  in  them  have  proceeded  from  men  with- 
out education,  who  have  thoughts  which  they  strive  to  realize, 
and  who  train  themselves  upward  by  correcting  their  errors. 
This  they  can  do  where  free  institutions  cultivate  enterprise 
and  place  the  means  of  improvement  within  the  reach  of  the 
laboring  classes.  The  spinning-jenny,  for  instance ;  and  in 
this  country  the  cotton-gin,  invented  by  a  young  man  without 
experience,  just  out  of  college  ;  the  vulcanizing  of  India  rub- 
ber ;  many  improvements  in  printing-presses  ;  some  of  the 
application  of  steam  as  a  motive  power,  show  what  thc  com- 
paratively untrained  can  do  in  countries  wheie  hope  and 
energy  are  stimulated,  and  the  means  of  knowledge  are  within 
the  reach  of  all. 

With  regard  to  collections  in  science  and  the  arts,  thc  case 
is  somewhat  different.  The  most  despotic  governments  can 
offer  places  and  support  to  men  of  special  gifts  ;  they  can 
found  libraries  and  museums  at  their  capitals,  and  outbid 


INFLUENCE  OF  PHYSICAL  AND  SOCIAL  CAUSES.  539 


others  in  purchasing  the  rarest  manuscripts  ;  can  educate  art- 
ists, and  estabHsh  schools  of  art ;  can  send  explorers  into  all 
parts  of  the  world  ;  can  have  expensive  books  on  science 
or  art  printed,  which  states  dependent  on  tax-payers  would 
hardly  venture  to  publish.  All  this  they  can  do  as  easily  as 
constitutional  monarchies,  and  with  advantagfs  superior  to 
those  of  any  republics. 

The  fine  arts  stand  on  other  ground.  Nations  have  special 
endowments,  for  which  we  can  no  more  account  than  for  the 
other  qualities  of  races.  Ilencc,  the  freest  race  or  nation  may 
be  incapable  of  excelling  in  the  fine  arts,  and  the  most  des- 
potic may  have  a  turn  for  music,  or  architecture,  or  painting. 
The  English  race,  including  the  Anglo-American,  is  as  yet 
not  highly  gifted  in  this  particular  ;  although  the  latter,  from 
the  mixture  of  nationalities  in  its  composition,  may  reveal 
hereafter  an  infusion  of  artistic  genius.  But  where  capacities 
and  native  tastes  are  equal,  the  free  will  surpass  the  despotic 
societies  ;  for  the  awakening  of  the  mind  will  be  greater,  and 
the  opportunities  within  the  reach  of  rising  talent,  greater. 
Competition  will  be  aroused  by  the  success  of  the  earlier  ad- 
venturers, and  the  nation  will  learn  to  value  the  arts  in  which 
they  have  been  successful.''^ 

<^  270. 

All  the  learned  professions  need  training-schools,  where  the 
Relations  of  a  bcginncr  can  be  tauirht  to  think  for  himself,  un- 

poliiy   tow.-irds  the  ° 

icirned  professions,  cler  uiastcrs  wlio  are  left  free  by  the  government 
to  propagate  their  opinions.  We  may  regard  it  as  certain, 
then,  that  a  free  government,  if  it  establishes  professional 
schools  of  its  own,  will  leave  the  public  teachers  to  themselves 
so  far  as  the  vital  interests  of  the  state  do  not  oppose  such 
freedom.  The  state  will  also  cherish  all  the  interests  of  sci- 
ence and  learning,  and  ^vill  give  an  adequate  support  to  the 

*  As  far  as  history  i)rovcs  anything  touching  the  capacities  of  dif- 
ferent states,  it  places  despotic  and  even  aristocratic  ones  below 
free  governments  ;  Sparta  and  Rome,  for  instance,  below  Athens  ; 
Venice  and  Milan  below  Florence.  lUit  so  many  causes  have  to  be 
considered,  that  no  general  rule  can  be  laid  down,  excei)t  that  native 
talent  and  genius  arc  most  awakened  under  free  institutions. 


S40 


POLITICAL  SCIENCE. 


best  masters.  In  a  despotic  state,  learning  and  learned  schools 
will  not  be  felt  by  the  government  to  be  of  the  first  impor- 
tance. There  will  be  a  natural  jealousy  of  all  free  thought  on 
politics,  history,  law,  and  religion.  Free  teaching  by  men  not 
appointed  or  paid  by  the  state  will  instinctively  be  frowned 
upon.  Young  men  will  go  forth  from  the  learned  schools 
into  life  with  little  enthusiasm  and  little  hope. 

Among  the  professions,  law,  in  its  applications  to  life,  may 
be  brought  under  despotical  institutions  into  a  finished  sci- 
ence, yet  its  spirit  can  hardly  fail  to  carry  out  the  spirit  of 
the  government;  but  oratory  will  have  no  field  to  move  in, 
and  no  stimulus.  This  is  an  exercise  of  legal  talent  which 
needs  the  forum,  the  jury,  and  the  free  assembly  of  legislators, 
all  of  which  are  inconsistent  with  despotism.  The  medical 
profession,  for  all  that  appears,  could  flourish  nearly  as  well 
under  a  despotical  as  under  a  free  polity  ;  yet  the  theory  can 
hardly  be  developed  and  perfected,  where  the  individual 
physician  feels  a  restraint  from  the  members  of  his  profession, 
backed  by  the  instincts  of  the  government  ;  and  the  practice 
will  not  be  pushed  forward  in  a  sluggishly  conservative  peo- 
ple. The  clerical  profession  may  be  able  in  a  despotism,  as 
members  of  an  authorized  church,  to  prevent  invasions  of 
their  ecclesiastical  rights,  but  neither  as  men  of  learning,  nor 
as  preachers,  will  they  be  able  to  go  beyond  a  certain  circle. 
The  state  will  keep  them  in  leading-strings  by  paying  them  ; 
if  they  belong  to  a  hierachical  establishment,  the  heads  of  it 
will  be  appointed  by  the  rulers  and  be  creatures  of  their  will. 
No  advance  in  theology  or  pulpit  eloquence  can  be  expected. 
Their  chief  function  will  be  considered  to  be  that  of  keeping 
the  people  in  order. 

Scientific  men  may  form  as  important  a  class  in  a  despotic  as 
in  a  free  government,  both  because  they  can  be  invited  from 
abroad,  and  because  the  physical  and  mathematical  sciences 
have  no  relations  to  the  political  and  moral  conditions  of  a 
nation,  except  so  far  as  freedom  sends  its  stimulating  power 
into  all  employments  and  all  classes. 

That  the  literary  class,  poets,  historians,  writers  on  what- 


IXFLUEXCE  OF  PHYSICAL  AND  SOCIAL  CAUSES.  541 


ever  concerns  the  public  good,  will  wither  under  a  despotism 
with  all  the  readiness  of  a  court  to  reward  talent,  it  can  hardly 
be  doubted. 

A  class  of  writers  which  is  increasing  in  importance,  although 
of  very  modern  origin,  is  that  of  journalists.  As  this  class  of 
writers  represent  through  the  press  all  the  varieties  of  political 
thought  which  are  floating  in  society,  it  might  be  supposed  that 
they  can  only  intensify  the  shades  of  political  opinion.  But  ' 
this  is  by  no  means  their  whole  work.  Their  main  offices  are 
to  give  the  news  and  to  comment  on  public  affairs.  A  subor- 
dinate one,  outside  of  the  political  sphere,  is  to  keep  men  in- 
formed of  the  social  and  scientific  progress  of  the  world.  The 
distribution  of  news  is  so  important  that  a  free,  progressive 
civilization  could  hardly  exist  without  it.  In  politics,  if  there 
were  no  such  check  as  journals  exercised  on  politicians  by 
the  speedy  disclosure  of  their  plans,  the  evils  from  this  source 
would  be  far  greater  than  they  are  now.  They  enable  the 
constituent  in  a  large  country  to  watch  his  representative, 
and  in  some  sort  fill  the  same  office  which  the  citizen  in  the 
small  state  entrusted  to  the  orators  in  the  ccclcsia.  When  a 
journal  is  committed  to  able  hands,  its  services  to  the  state 
will  be  at  least  on  a  par  with  those  of  the  principal  statesmen 
of  a  country. 

In  a  country  where  journalists  find  encouragement,  there 
must  be  parties  with  free  room  to  act  and  free  expression  of 
opinion.  The  journal  need  not  exactly  represent  a  political 
party  in  all  its  doctrines  and  measures,  but,  as  there  are  mod- 
erate men  and  intense  men  in  every  party,  as  there  arc  those 
who  go  half-way  with  a  party  and  those  who  favor  all  its 
measures,  so  there  will  be  journals  of  every  sort  and  suited  for 
every  class  of  readers.  Journals  do  not  make  but  rather  fol- 
low parties,  and  bring  them  into  their  most  advantageous 
condition  for  acting.  Parties  without  journals  will  be  far  less 
intelligent  than  parties  with  journals. 

But  what  do  parties  themselves  do  in  a  state,  especially  in 
a  free  state,  where  alone  they  can  fairly  act  out  their  nature  ? 
This  we  propose  to  consider  in  the  next  chapter. 


CHAPTER  XIV. 


POLITICAL  PARTIES. 
§  271. 

In  treating  of  political  parties  we  shall  not  go  beyond  those 
Political  parties,  movements  of  this  kind  in  which  thought  and  its 
Their  nature.  exprcssion  are  free,  that  is,  beyond  countries 
which  are  already  self-governing,  or  where  the  seed  is  sown 
and  is  sprouting  for  self-government.*  In  fact,  parties,  in  the 
modern  sense  of  the  term,  cannot  be  said  to  exist  where  there 
is  no  diffusive  power  of  opinion,  and  when  those  who  have 
common  opinions  on  political  subjects  cannot  carry  their 
points  by  combined  action. f  In  countries  where  knowledge 
and  co-operation  in  public  measures  are  very  imperfect,  there 
may  be  local  dissatisfaction,  strife  between  great  men  for 
places  at  court,  and  even  wider  movements,  having  their  ori- 

*A  work  written  by  Prof.  Wachsmutli,  of  Leipzig,  entitled  "  Ge- 
schichte  der  Politischer  Parteiungen,"  in  3  vols.  (1853-1856),  devoted 
to  this  subject  of  parties,  begins  almost  with  the  creation  of  man. 
He  devotes  four  pages  to  the  United  States,  out  of  his  nearly  sixteen 
hundred.  Cooke's  Hist,  of  Party  in  England  (1836,  3  vols.)  is  a 
valuable  collection  of  facts. 

f  "  Party,"  says  Mr.  Burke  (Thoughts  on  the  Cause  of  the  i)resent 
Discontents;  Works,  J3ohn's  ed.,  i.,  375),  "is  a  body  of  men  united 
for  promoting  by  their  joint  endeavors  the  national  interest  upon 
some  particular  princijile  in  which  they  are  all  agreed.  For  my  part, 
1  find  it  impossible  to  conceive  that  any  one  believes  in  his  own  poli- 
tics, or  thinks  tliem  to  be  of  any  weight,  who  refuses  to  adopt  the 
means  of  having  them  reduced  to  practice.  It  is  the  business  of  the 
speculative  philosopher  to  mark  the  proper  ends  of  government.  It 
is  the  business  of  the  politician,  who  is  the  philosopher  in  action,  to 
find  out  proper  means  towards  those  ends,  and  to  employ  them  with 
effect,"  etc. 


POLITICAL  PARTIES. 


543 


gin  in  disputed  successions  or  in  religious  contentions.  But 
here  a  few  leaders  do  all  the  active  work  ;  the  people  follow 
their  leaders  without  intelligence  and  independent  judgment. 
Parties  may  be  said  to  be  divisible  into  two  classes  :  tJie  first, 
where  there  is  no  especial  foundation  for  them  in  the  nature 
of  the  government,  and  which  are  due  to  tempora"t^causes  ;  tJie 
second,  where  the  nature  of  the  constitution  of  the  state  or  the 
social  condition  is  such,  and  the  intelligence  such,  that  dif- 
ferences of  opinion  are  inevitable,  owing  to  the  difference  of 
interests  or  of  political  doctrine  in  a  country.  Party  may 
lead  to  civil  strife  and  revolution,  but  is  far  from  aiming  at 
violence  in  its  first  formation.  The  violence  is  the  result  of 
opposition. 

We  may  exclude  from  our  consideration  the  court  factions 
of  despotic  governments,  and  indeed  all  political  movements 
of  the  people  in  despotic  governments,  which  are  nothing  but 
local  or  temporary  acts  of  resistance  to  oppression.  Nor 
would  we  allow  that  parties  can  appear  save  in  a  very  imper- 
fect way  in  feudal  kingdoms,  where  the  combinations  of  rest- 
less nobles  appeal  to  force  without  using  or  having  a  place 
where  they  can  use  argument.  But  as  soon  as  estates  were 
called  and  deputies  represented  the  leading  interest  in  assem- 
blies, whether  separately  or  together,  there  was  room  for  free 
debate  ;  both  in  the  kingdom  and  in  the  barony  the  estates 
might  combine  together  against  the  suzerain,  or  form  par- 
tial unions  against  one  another.  Nor  could  parties  appear  in 
a  city  democracy  of  a  despotic  type,  for  by  the  nature  of 
such  a  polity  it  has  overcome  and  destroyed  all  other  classes 
in  society  except  the  people  of  the  lower  class.  Here,  then, 
if  strife  occurs,  it  will  run  into  violence,  it  wi'll  be  the  attempt 
of  one  faction  to  overthrow  another  which  at  the  time  en- 
grosses power.  We  may  .say  further  that  there  can  be  no 
such  thing  as  party,  where  men  of  different  minds  are  ready 
to  resort  to  violence,  if  resisted  ;  and  that  party  implies  a 
certain  sway  of  reason,  an  appeal  to  argument  in  order  to 
gain  a  public  end. 

Mr.  VVachsnuith  speaks  of  the  division  of  the  kingdom  of 


544 


POLITICAL  SCIENCE. 


David  and  Solomon  after  the  death  of  the  latter,  as  an  in- 
stance of  a  conflict  of  party.  We  are  unable  to  accept  of 
his  classification.  The  oppressive  taxes  of  Solomon  un- 
doubtedly gave  birth  to  this  dismemberment.  It  was  dictated 
by  no  desire  to  effect  constitutional  change  in  the  kingdom, 
nor  was  argument  used  to  delay  the  issue  ;  but  as  soon  as  the 
king's  adverse  answer  to  the  petition  or  demand  of  the  con- 
gregation was  made  known,  the  rebellion  broke  out.  Possibly 
it  would  have  been  more  acceptable  to  the  northern  tribes  to 
have  the  political  capital  nearer  to  the  centre  of  the  land,  as 
making  the  protection  of  all  parts  of  the  land  more  sure. 
But  no  such  wish  appears  in  the  annals,  and  no  demand  is  on 
record  even  of  a  council  to  control  the  sovereign.  A  word 
and  a  blow  were  all. 

There  was,  however,  in  the  later  times  of  the  Jewish  mon- 
archy, a  party  of  some  continuance  and  with  distinct  ideas, 
which  they  sought  to  carry  by  persuasion.  The  great  ques- 
tion of  the  later  monarchy  was  whether  the  Egyptian  kings 
were  strong  enough  to  help  the  Jewish  kingdom  against  the 
power  of  Assyria  and  of  Babylon.  The  people,  the  kings, 
many  of  the  princes,  priests  and  prophets,  clung  to  Egypt 
with  a  patriotic  detestation,  as  they  must  have  thought  it, 
against  the  more  terrible  eastern  powers.  On  the  other  hand, 
the  prophet  Jeremiah  and  some  of  the  best  men  of  the  nation 
saw  the  hopelessness  of  the  struggle  with  a  kingdom  pos- 
sessed of  such  resources  as  Babylon,  and  Avhile  they  were  no 
friends  to  the  new  empire  and  were  the  truest  patriots,  they 
counselled  submission.    The  result  showed  their  wisdom. 

But  we  will  not  delay  in  order  to  speak  of  governments 
Party  dependent  aud  socictics  whcre  parties  are  transient  and 

01)  constitutional  ad-  ,        ^     ,     .  . 

vance.  not  the  ncccssary  outgrowth  of  thi^ir  constitu- 

tions. The  operations  of  pa-rties  are  best  seen  where  the 
polity,  if  it  do  not  require,  at  least  encourages  permanent 
divisions  of  opinion,  and  combinations  to  carry  them  out  in 
peaceable  ways,  and  where  some  diversity  of  interest  neces- 
sarily gives  rise  to  the  desire  to  control  the  policy  of  the  gov- 
ernment.   Such  constitutions  may  not  be  as  yet  wholly  free; 


POLITICAL  PARTIES. 


545 


the  supreme  executive  may  be  able  to  cripple  the  plans  of 
those  whom  it  opposes  ;  but  still  there  is  an  amount  of  free 
opinion  and  a  fearlessness  in  making  it  known  that  cannot 
wholly  be  repressed.  Of  the  slow  progress  of  parties  in 
gaining  their  ends  against  the  opposition  of  a  court  the  his- 
tory of  England  furnishes  a  fine  example.  For  centuries  the 
independent  electors  of  England  had  not  reached  that  degree 
of  power  that  the  court  and  its  friends  could  not  in  a  great 
degree  counteract  their  measures.  And  yet  the  party  op- 
posed to  free  institutions  was  obliged  from  time  to  time  to 
make  concessions,  until  the  middle  class  and  a  portion  of  the 
upper,  the  representatives  of  the  liberties  of  the  nation,  felt 
themselves  strong  enough  to  oppose  the  king  with  arms. 
The  death  of  Charles  I.  for  a  time  threw  the  balance  of  power 
on  the  other  side,  until  the  vices  of  Charles  II.  and  the  follies 
of  his  brother  rendered  a  revolution,  which  succeeded  almost 
without  bloodshed,  necessary.  This  great  event,  with  the 
improvements  in  administration,  in  the  security  of  person,  in 
the  checks  on  the  misuse  of  power,  which  belong  to  the  same 
age,  made  it  possible  for  parties  representing  the  opinion  of 
the  educated  and  aristocratic  class,  however  that  might  in- 
cline, to  be  predominant.  There  was  a  constitutional  growth 
of  elements  forming  the  state,  which  conditioned  the  growth 
of  parties  ;  but  the  movements  of  the  elements  on  the  side 
of  freedom  could  not  be  said  to  have  reached  their  requisite 
state  of  free  action  until  after  the  revolution. 

One  phenomenon  of  parties  that  history  reveals  to  us  is 
Number  of  princi-  that  they  Vary  greatly  in  regard  to  the  number 

pics  constitming  a  ,.  .  , 

^  p'rty-  ot  leaclmg  principles,  civil  or  religious  or  indus- 

trial, which  enter  into  their  profession  of  faith.  In  some  of 
the  ancient  parties  there  was  perhaps  not  more  than  one 
principle  at  issue,  and  that  one  self-defensive  on  the  one  or 
other  side.  In  the  little  city  aristocracies  the  question  was 
how  to  cripple  the  democracies,  so  that  numbers  should  not 
be  too  strong  for  old  families  and  wealth.  When  the  pope 
and  emperor  were  at  strife  early  in  the  thirteenth  century, 
cvcrytliing  in  the  Italian  towns  turned  on  that  contest. 
VOL.  II.— 35 


546 


POLITICAL  SCIENXE. 


Xobles  and  the  class  of  capitalists  and  manufacturers  were 
alike  divided  between  the  Guelphs  and  the  Ghibellines.  In 
many  other  cases  a  political  faith  has  consisted  of  quite  a 
number  of  articles.  Thus  the  tory  party  at  its  origin  not 
only  supported  the  established  church  and  the  monarchy,  as 
of  divine  appointment,  but  gave  to  the  monarch  prerogatives 
which  could  not  be  resisted  except  by  a  passive  refusal  to 
obey  commands  which  were  thought  to  be  contrary  to  the 
scriptures.  The  whigs,  on  the  other  hand,  supported  the  state 
church — many  of  them,  at  least — on  grounds  of  mere  expedi- 
ency ;  rejected  the  jus  divinuvi  of  kings,  defended  the  revo- 
lution of  1688  on  the  plea  that  the  king  had  broken  the 
original  contract  with  the  people,  and  in  reality  regarded 
the  people  as  the  only  ultimate  source  of  power. 

Parties  are  sometimes  broken  up,  and  reorganized  upon  a 
Partieswithasin-  siuglc  article  of  political  faith,  but  it  must  be 
giepnncipie.  great   importance,  and  which  makes 

strong  appeals  to  the  feelings  of  multitudes.  In  modern 
times  questions  of  humanity  and  of  morals,  which  a  whole 
people  can  understand,  enlist  minds  of  a  fervid  temper,  and 
awaken  in  many  an  enthusiasm  that  breaks  over  all  antece- 
dent party  ties.  Such  has  been  the  movement  for  preventing 
the  sale  of  spirituous  liquors  in  several  of  the  states  of  the 
American  Union,  which,  however,  after  various  legislative 
experiments,  has  done  little  besides  dividing  the  better  part 
of  the  community  into  two  hostile  factions,  while  the  worse 
part  was  unaffected  by  the  agitations.  The  abolition  of  slav- 
ery on  moral  and  religious  grounds  took  a  far  deeper  hold  of 
a  more  widespread  and  an  almost  national  party.  This  party 
taught  nothing  which  Quakers  and  other  philanthropists  had 
not  insisted  upon  since  the  middle  of  the  eighteenth  century. 
But  it  had  not  entered  into  politics  until  the  South,  by  oppo- 
sition to  it,  forced  men  to  look  at  it  and  to  take  sides.  Then 
it  was  that  the  power  of  a  single  opinion  drawn  into  the  arena 
of  party  conflict  became  manifest.  The  Southern  states,  dread- 
ing the  opinion  which  gave  birth  to  the  anti-slavery  party, 
both  because  they  half  admitted  its  truth,  and  because  slavery 


POLITICAL  PARTIES. 


547 


was  in  opposition  to  the  principles  of  equal  freedom  on  which 
our  institutions  rest,  preferred  to  run  the  risk  of  breaking  up 
the  union  rather  than  to  encounter  this  threatening  foe  within 
its  pale,  and  in  so  doing  nearly  ruined  themselves  and  the 
country. 

Of  all  sentiments  which,  alone  or  in  company  with  others, 
give  life  and  heat  to  a  party,  the  religious  is  the  most  power- 
ful. In  the  United  States,  through  the  entire  separation  be- 
tween the  state  and  all  churches,  this  cause  of  division  is 
almost  eliminated  from  our  politics  ;  yet  even  among  us  the 
cohesion  and  concerted  action  of  the  Roman  Catholics  make 
that  church  an  object  of  jealousy  to  the  Protestant  denomina- 
tion, and  that  the  more  readily  because  these  move  together 
without  perfect  union.  Hence,  from  time  to  time  its  atti- 
tude and  claims  may  become  an  element  in  our  party  con- 
tests. But  where  established  churches  exist,  and  more  than 
one  denomination  is  strong,  religious  differences  can  hardly 
be  kept  from  entering  into  politics.  The  dissenters  will  be 
arrayed  against  the  Church  of  England,  because  to  that  church 
the  upper  and  more  conservative  parts  of  society  belong,  and 
because  the  principle  of  state  support  to  religion  is  against  the 
doctrines  which  are  most  cherished  by  the  weaker  denomina- 
tions touching  the  province  of  government.  The  Catholic 
church  of  Ireland,  owing  to  historical  causes,  will  generally 
take  an  attitude  of  hostility  against  that  English  party  which 
especially  represents  and  defends  the  established  church,  nor 
will  the  disestablishment  of  the  Irish  Episcopal  church  put  a 
complete  end  to  this  hostility.  So  in  Germany,  the  dependence 
which  state  support  involves,  and  the  independence  which  is 
a  radical  principle  of  the  Catholics,  must  produce  conflicts  as 
long  as  the  state  system  and  Catholic  claims  continue  as  they 
are.  To  produce  political  peace  where  more  than  one  church 
is  strong,  cither  there  must  be  entire  separation  between  the 
civil  and  the  ecclesiastical  interests,  or  there  must  be  ser- 
vility of  the  church,  and.  such  a  tyranny  of  the  state  as  will 
bear  hard  upon  one  or  another  part  of  tlie  system.  And 
these  grievances  will  have  utterance  through  parties. 


548 


POLITICAL  SCIENCE. 


While  thus  in  some  cases  a  single  principle  or  feeling  unites 
Open  questions  in  p^rtics  together,  iu  others  a  principle — and  a 
party  movements.  ^^^^  important  onc— may  be  held  or  rejected 
consistently  with  party  allegiance.  This  is  owing  to  local 
interests  which  clash  with  other  local  interests,  or  to  political 
doctrines  held  in  one  part  of  a  country  and  not  in  another,  or 
to  the  interests  of  a  class  like  the  aristocracy  of  English  land- 
owners, which  could  unite  their  strong  forces  on  the  two 
sides  against  a  minister  who  sought  to  make  the  price  of  grain 
such  as  would  be  for  the  advantage  of  the  whole  country 
rather  than  of  the  land-owners.  It  is  necessary  for  the  stabil- 
ity of  parties  to  have  some  such  open  questions,  otherwise 
they  will  drive  conscientious  or  wise  men  out  of  their  ranks, 
and  perhaps  destroy  their  organization.  There  is  no  way  of 
carrying  on  public  affairs  in  safety  without  conceding  to  polit- 
ical men  connected  with  the  party  in  power  a  certain  amount 
of  independence.  If  the  whip  is  used  too  freely,  there  will 
be  a  rebellion. 

Almost  always  a  body  of  independent  men  in  a  legislature, 
Third  parties  and  entertaining  deep  convictions  of  their  own  and 

independent    mem-  -n    i        -i  r  ._i  v.  1 

bers.  courageous,  will  be  the  salt  oi  the  assembly, 

and  will  keep  both  parties  within  the  bounds  of  right  meas- 
ures. But  I  cannot  think  that  a  third  party,  with  strength 
enough  to  determine  measures  one  way  or  the  other  by  their 
votes,  is  fitted  to  do  much  service.  If  such  a  third  party  can 
carry  any  measure  at  will,  it  becomes  a  formidable  power, 
and  is  liable  to  be  tampered  with  and  corrupted  by  negotia- 
tions with  the  others.  Its  members  will  become  mere  soldiers 
of  fortune.  Perhaps  men  will  help  to  form  such  parties  in  the 
hope  of  getting  the  advantages  arising  from  holding  the  bal- 
ance of  power. 

It  may  be  made  a  question  of  political  morality  to  what 
How  far  oiiqht  cxtcut  and  in  what  cases  open  questions  ought 

open  questions  to  be  .        .  y  i 

allowed  in  a  parly,  to  bc  allowcd  HI  party  orgau izatiou .  In  general, 
measures  of  vast  importance,  affecting  the  vital  interests  of 
the  state  at  the  moment,  the  passage  of  which  cannot  be 
postponed  without  prejudice  to  national  interests,  can  by  no 


POLITICAL  PARTIES. 


549 


means  be  made  open  questions.  The  head  of  a  party  who 
would  permit  such  questions  to  be  held  or  rejected  within  its 
lines,  ought  to  sink  into  contempt,  as  a  man  who  sought  to 
keep  in  power  by  having  as  few  principles  as  possible.  The 
same  contempt  is  justly  bestowed  on  a  party  which  will  have 
no  declaration  of  principles  on  the  most  important  subjects, 
or  only  a  declaration  which  can  look  both  ways.  More  than 
once  the  parties  in  the  United  States  have  been  afraid  to 
take  bold  measures  on  questions  vitally  affecting  the  interests 
of  the  country. 

There  are,  in  every  country  where  men  think  and  talk  freely 
on  public  measures,  many  who  agree  with  neither  of  the  dom- 
inant parties  altogether.  In  some  countries,  many  of  the 
representatives  in  the  legislatures,  while  agreeing  in  the  main 
with  one  of  the  parties,  cannot  be  relied  upon  for  their  uni- 
form support.  The  English  country  gentlemen  of  a  bygone 
age  belonged,  many  of  them,  to  this  class  of  independent 
members  of  parliament.  .  They  seem  to  have  had  little  ac- 
quaintance with  law  or  constitution,  and  to  have  been  led  by 
watchwords,  such  as  "  church  and  king,"  but  were  not  prop- 
erly party  men,  nor  under  the  sway  of  corrupt  motives. 
These  are  a  most  useful  ingredient  in  an  assembly  where  par- 
ties fight  their  battles,  for  they  are  a  check  on  the  audacity 
and  the  carelessness  of  party  leaders.  Very  few  such  mem- 
bers are  to  be  found  in  our  congress,  although  they  may 
appear  in  the  state  legislatures.  The  reason  of  this  difference 
between  the  two  countries  is  the  greater  intensity  of  party 
feeling  here,  with  the  more  complete  machinery  of  nomina- 
tions. The  difference  is  greatly  in  favor  of  England,  where, 
in  general,  a  more  entire  independence  is  allowed  to  the  rep- 
resentative as  one  of  a  party  than  our  practice  concedes  to 
him. 

We  have  already  had  occasion  to  remark  that  some  parties 
Party   doctrine  "^^^  determined    by  temporary   causes,  while 
and  practice.        Qthcrs  are  to  he  explained  by  the  very  constitu- 
tion of  the  country.     Others,  again,  owe  their  source  to 
events  of  the  remote  past,  whicli  have  tended  to  mould  the 


550 


POLITICAL  SCIENCE. 


character  of  the  nation,  but  which  cannot  always  continue  to 
possess  the  same  control.  Parties  in  free  states  will  naturally 
be  modified  by  the  three  causes  just  named.  The  constitu- 
tional causes  will  make  parties  what  they  are  ;  the  events  of 
the  past  will  generally  be  looked  upon  with  biasses  derived 
from  constitutional  doctrine  ;  but  isolated  causes  will  act  so 
as  to  produce  a  certain  inconsistency  with  the  general  spirit, 
the  traditions  of  party.  A  most  remarkable  instance  of  this 
inconsistency  was  the  purchase  of  Louisiana  from  France 
under  Mr.  Jefferson's  administration  in  1803.  There  was 
nothing  in  the  constitution  which  contemplated  any  such 
thing  as  the  purchase  of  territory,  and  yet  the  party  of  strict 
constructionists  advocated  this  measure,  while  the  president, 
himself,  the  strictest  of  constructionists,  contented  himself 
with  expressing  the  hope  that  the  purchase  might  be  sanc- 
tioned by  a  subsequent  change  in  the  constitution.  This  was 
never  done,  and  the  precedent  thus  set  has  been  followed  more 
than  once. 

Parties  that  depend  on  differences  of  constitutional  doc- 
Duration  of  par-  trine,  or  on  some  lasting  cause,  are  often  very 
long-li\^ed,  yet  the  name  will  often  last  while 
the  principles  are  forgotten.  Or,  if  the  principles  retain  their 
vigor  on  the  whole,  there  will  be  a  progress  of  parties  ;  one 
will  seize  on  some  great  political  principle  in  advance  of  the 
other,  and  will  carry  it  out  in  spite  of  opposition,  so  as  to  in- 
corporate it  into  the  lasting  policy  of  the  country.  This  is 
the  case  particularly  in  constitutions  like  that  of  England, 
which  grow  from  age  to  age  ;  while  our  written  constitution, 
being  fixed  and  interpreted  by  the  supreme  court  of  the  land, 
is  far  less  capable  of  taking  such  a  step  forward.  We  should 
have  to  make  an  amendment  suited  to  the  new  exigence,  like 
the  amendments  passed  since  the  war.  But  in  England,  the 
acts  of  the  convention  parliament  at  the  revolution  of  1688 
would  not  need  to  be  repeated  at  a  similar  crisis,  nor  would 
the  Tory  party  enter  as  reluctantly  into  similar  measures  now 
or  hereafter.  It  is  safe  to  lay  down  the  general  principle  that 
old  parties  can  never,  in  a  progressive  country,  be  exactly 


POLITICAL  PARTIES. 


551 


what  they  "vvere  once.    Every  important  measure  ha?  a  ten- 
dency to  show  what  the  constitution  is,  and  what  it  ought  to 
be  in  order  to  carry  a  nation  safely  through  unforeseen  trials. 
The  names  of  parties,  often  in  themselves  unmeaning,  stick 
T-.  r      to  them  because  it  is  convenient  to  have  a  brief 

1  he  names  of  p.ir- 

expression  for  a  number  of  characteristic  quali- 
ties. In  our  constitutional  history  the  federalists  were  the 
party  which  was  most  active  in  forming  the  constitution  and 
in  making  the  union  a  veritable  state  ;  with  this  practical  aim 
it  combined  a  certain  attachment  to  England  and  English 
precedents,  and  was  averse  to  universal  suffrage  and  to  poli- 
tical abstractions.  It  was  the  party  of  Washington  and  many 
others  of  the  first  men  of  our  best  age  ;  but,  after  furnishing 
the  two  first  presidents,  it  gave  way  to  the  democratic  party, 
and  expired,  as  a  party,  at  the  end  of  the  war  with  England, 
in  1 815.  The  democrats  were  the  party  of  states'  rights,  of 
political  abstractions,  of  universal  suffrage  except  for  slaves  ; 
and,  in  the  commotions  of  the  earlier  years  of  the  century,  it 
was  hostile  to  England  and  sympathized  with  France,  liut 
while  its  name  has  remained,  its  doctrines  have  been  consid- 
erably altered,  nor  do  the  names  which  have  been  applied  to 
the  antagonist  parties  (whigs,  republicans)  represent  in  any 
e.xact  sense  the  successors  of  the  old  federalists.  Of  the  some- 
what progressive  sense  of  the  names  whigs  and  tories,  we 
have  spoken  already.  Guelphs  and  Ghibellines  continued 
to  be  names  of  political  factions  in  the  towns  of  northern  and 
middle  Italy,  until  long  after  the  German  emperors  had  ceased 
to  be  formidable  either  to  the  town  liberties  or  the  pope's  un- 
restricted action.  These  factions  were  kept  in  being  by  the 
quarrels  of  the  different  republics  with  one  another,  and  by 
the  traditions  of  the  noble  families  carrying  down  family  feuds 
from  age  to  age.  And  when,  after  a  long  sleep,  actual  con- 
troversy between  the  emperors  and  the  popes  began  again  in 
the  fifteenth  and  sixteenth  centuries,  the  old  parties  had  new 
life  put  into  them,  whether  with  the  same  or  with  new  names, 
but  without  the  old  motives.  (Comp.  Ranke,  Hist,  of  the 
popes,  Ij.  iii. ,     i .) 


553 


POLITICAL  SCIENCE. 


Sometimes  the  history  of  party  shows  us  several  parties 
Complicated  fea-  withifi  oiie  anothcr,  or  side  by  side,  crossing  each 
tures  of  parties.  ^.j^^  other's  track,  and  in  great  confusion  mak- 
ing separate  issues.  This  is  owing  to  the  fact  that  real  abuses, 
as  they  seem  to  one  party,  affect  the  interests  or  the  traditional 
feelings  of  a  portion  of  its  members,  so  that  some  cannot  go 
as  far  as  others,  and  either  withdraw  or  become  neutral.  An 
illustration  is  furnished  by  the  history  of  the  English  civil 
wars  in  the  time  of  Charles  I.  As  Guizot  remarks,  the  refor- 
mation of  civil  abuses  was  an  end  to  a  portion  of  the  Puri- 
tans, and  that  of  the  religious  abuses  to  another  portion,  both 
of  whom  were  conscientious  and  acted  on  firm  conviction. 
But  if  the  civil  abuses  had  been  righted  and  security  given 
for  the  future,  many  of  the  political  Puritans  would  have 
accepted  a  church  of  England  somewhat  reformed  and  cur- 
tailed in  the  episcopal  power.  But  there  arose  in  this  seeth- 
ing time  multitudes  of  religionists  who  wished  to  base  the 
state  upon  their  several  platforms,  and  behind  all  was  the 
third  party  of  the  Scots.  The  presence  of  religious  questions 
prevented  compromise  on  any  other  scheme  than  that  of  per- 
fect freedom,  which,  in  the  existing  state  of  things  and  of 
opinions,  was  impossible.  Accordingly,  numbers  of  the  old 
leaders  retire  or  change  their  policy,  until  something  very 
un-English  comes  to  pass, — the  ablest  general  becomes  the 
head  of  the  nation.  The  Puritans  of  1640  were  not  the  Puri- 
tans of  1649. 

Most  like  to  England  in  the  relations  of  parties,  as  well  as 
in  the  tendency  to  the  practical  in  politics,  was  Rome.  Here 
the  questions  were  confined  within  narrower  limits,  but  there 
was  a  progress  forward,  one  party  taking  the  lead  of  the  other 
in  this  respect  ;  and  when  a  point  was  once  settled,  there  was 
no  going  backward  except  in  Sulla's  temporary  reaction. 
The  optimates  of  Cicero's  time,  in  their  view  of  the  constitu- 
tion and  of  the  measures  to  be  opposed  or  accepted,  differed 
from  the  patricians  of  the  time  soon  after  the  exj^ulsion  of  the 
kings,  more  than  the  Tories  under  Charles  I.  differ  from  the 
Tories  now. 


POLITICAL  PARTIES. 


553 


In  recent  times,  when  various  interests  make  themselves 
Parties  within  par-  ^'^^^  throu^^h  their  representative  men,  and  new 
classes  of  society  are  gaining  new  political  power, 
parties  have  become  more  difficult  to  manage  and  to  satisfy. 
Especially  is  this  true  with  the  sections  of  a  liberal  party, 
which  have  views  beyond  one  another,  while  a  conservative 
party  can  act  together  in  opposing  all  innovations,  such  as 
greater  extensions  of  suffrage,  or  changes  in  the  relations 
between  state  and  church.  In  these  states  of  parties  there  is 
great  perplexity  in  respect  to  the  course  to  be  taken,  and  the 
old  question  comes  up,  how  far  men  allied  in  parties  may  go 
in  their  compromises  and  concessions.  These  questions  of 
statesmanship  and  of  morals,  as  was  said,  belong  to  the  posi- 
tive or  progressive  rather  than  to  the  negative  or  conserva- 
tive side.  Many  leaders  of  parties  will  go  far  beyond  their 
own  conviction  of  what  is  best,  in  order  to  ingratiate  their 
extreme  followers.  But  all  such  concessions  are  questionable 
and  dangerous.  They  are  so  because,  if  the  leader  has  no 
real  conviction  that  they  are  right,  many  of  his  followers  will 
have  the  same  want  of  conviction,  and  the  party  become  weak, 
while  the  extremists,  who  have  a  theory  to  support,  will 
clamor,  even  if  their  measures  are  carried,  for  something 
yet  more  undesirable.  And,  on  the  other  hand,  the  most 
conservative  of  his  party  will  leave  him,  as  having  left  them 
and  the  party  principles,  so  that  he  may  be  tolerably  sure  of 
handing  over  the  reins  of  power  to  the  other  side  at  an  early 
day.  There  must  then  come  another  organization  of  parties, 
the  one  being  formed  out  of  the  old  conservatives  and  their 
new  friends,  the  other  out  of  the  more  extreme  progressives 
and  others  whom  they  can  rally  around  their  standard.  Such 
changes,  or  changes  something  like  them,  have  taken  place 
under  the  British  constitution,  but,  under  our  written  consti- 
tution and  with  the  fixed  continuance  of  elected  ma<iistratcs 
in  office,  are  less  likely  to  exist. 

From  this  illustration  we  may  advance  to  the  result  that, 
in  many  constitutional  monarchies  with  responsible  ministers, 
there  must  be  such  checkered  compositions  of  parlies  as  we 


554 


POLITICAL  SCIEN'CE. 


have  described,  which  will  often  render  the  choice  of  meas- 
ures very  difficult.  Some  of  this  difficulty  will  be  removed 
by  outside  gatherings  of  members,  in  which  will  be  ascer- 
tained how  far  the  majority  for  a  particular  measure  can  be 
calculated  upon.  Independent  members  also  will  be  sounded. 
In  such  cases  there  is  great  temptation  to  strike  bargains,  not 
in  the  most  barefaced  way,  but  in  a  way  still  dishonorable  for 
both  parties. 

Every  party  has  its  principles,  which,  if  it  be  honest,  it 
What  are  and   mcans  to  Carry,  and  the  leaders,  if  there  be 

what  are  not  party 

questions.  sucli  iu  fact,  wiU  rcdccm  their  pledges  to  the 

public,  or  incur  the  repute  of  dishonor.  In  our  country  such 
pledges,  put  together  like  so  many  planks  in  what  is  called  a 
platform,  are  very  often  neglected.  The  reason  of  this  is 
that  no  man  of  leading  character  is  responsible  for  them. 
There  are  in  other  countries,  where  party  government  pre- 
vails, questions  on  which  differences  are  so  great  that  there  is 
no  hope  of  carrying  them  within  the  party  organism.  We 
have  already,  while  speaking  of  open  questions,  said  that  none 
ought  to  be  such  which  vitally  affi^ct  the  character  or  pros- 
perity of  a  country.  Now,  the  leaders  or  the  followers  may 
seek  to  carry  such  questions  not  yet  inscribed  on  the  registers 
of  a  party  by  all  means  in  their  power  that  are  honorable, 
with  the  help  or  against  the  opposition  of  the  other  party. 
Such  questions  will  relate  to  matters  that  have  not  been 
drawn  into  politics,  like  most  that  touch  on  improvements  in 
the  administration  of  law  and  justice,  and  the  welfare  of  the 
nation  in  its  various  interests.  But  others  are  party  questions, 
where  it  is  expected  that  the  party  will  be  united,  and  in  de- 
fence of  which  the  ministerial  leaders  will  stake  their  political 
existence.  The  practice,  at  such  times,  in  Great  Britain  is 
reduced  to  a  system.  The  ministry  resigns,  and  either  a  new 
ministry  acts  with  the  same  parliament,  or  a  new  parliament 
is  chosen  to  determine  what  party  shall  furnish  the  ministers. 
In  other  constitutional  governments  the  changes  are  not  yet, 
it  is  believed,  so  summary  or  absolute.  In  our  country  no 
such  thing  can  take  place,  because  the  president  stays  through 


POLITICAL  PARTIES. 


555 


his  time,  the  cabinet  are  permanent  officers  of  the  president, 
and  the  legislature  changes  at  certain  stated  times  and  in  cer- 
tain ways. 

Parties  in  a  free  country  arc  exceedingly  affected  by  the  lead- 
influence  of  his-  ing  events  of  the  time.    Thus,  the  sentiment  of 

torical  events  on  par-  ,  .  . 

ties.  England  was  drawn  towards  the  ancient  consti- 

tution by  the  events  of  the  civil  war  and  the  destruction  of  the 
monarchy,  so  that  at  the  restoration  the  monarchy  was  more 
firmly  secured  in  the  heart  of  the  people  than  it  had  been  for 
many  years.  The  long  parliament  of  Charles  II.,  when  it 
opened  its  sessions  in  1660,  went  beyond  the  court  in  its  per- 
secuting ordinances,  and  in  bitterness  towards  those  out  of 
whose  hands  the  power  had  passed  :  when  it  was  dissolved  in 
1678,  change  of  opinion  and  change  of  members  by  death  or 
other  causes,  together  with  the  disclosures  of  the  vileness  of  the 
court  and  the  king,  made  it  essentially  a  different  body.  The 
lines  between  whigs  and  tories  were  now  drawn,  and  the 
former  accepted  rules  of  constitutional  government  which 
had  been  the  abhorrence  of  the  high-church  party  seventeen 
years  before.  By  the  change  in  the  line  of  succession  the 
whigs  acquired  additional  influence,  while  the  tories  were 
ready,  it  was  thought,  to  welcome,  or  at  least  accept  the  family 
of  James  II.  if  they  should  succeed  in  getting  possession  of 
the  throne.  It  was  not  strange  that  the  defenders  of  the 
Protestant  succession — those  who  had  brought  over  and  up- 
held the  house  of  Hanover — should  carry  on  the  government, 
for  many  of  the  tories  were  believed  to  be  Jacobites  at  heart. 
The  whigs  continued  in  power  during  the  reign  of  the  two 
first  Georges,  and  gave  place  to  a  tory  faction  at  the  accession 
of  George  III.,  after  England  by  their  ability  in  administration 
had  taken  the  first  place  in  luiropean  affairs,  and  acquired  an 
immense  empire  in  the  east  as  well  as  in  the  west.  The  for- 
tunes of  the  parties  fluctuated  after  George  III.  came  to  the 
throne  ;  but  when  the  French  revolution  alarmed  ICnglanil, 
the  tories  came  to  a  secure  possession  of  the  government 
during  forty  years  ;  when  the  demand  for  a  reformed  parlia- 
ment called  in  the  other  party  again,  which  has  had  control 


556 


POLITICAL  SCIEN'CE. 


over  the  country  the  greater  part  of  the  time  since  1832.  Yet 
as  old  issues  are  passing  away,  new  opinions  find  lodgment 
in  both  parties,  so  that  the  moderate  men  of  each  agree 
pretty  well  together  except  on  one  or  two  questions. 

The  peculiarity  of  English  parties  is  that  a  man,  selected  in 
Parties  in  democ-  form  by  the  sovcrcign,  and  in  reality  by  public 
opinion  within  a  party,  has  for  the  time  the  gov- 
ernment of  the  country  in  his  hands.  In  democracies,  where 
the  offices  are  filled  by  elections,  a  party  carrying  the  elections 
has  the  government  until  a  new  election  takes  place.  In  those 
extreme  democracies  where  the  lot  assigned  office  in  great 
measure,  the  parties  exercised  their  power  by  means  of 
popular  orators,  by  attacks  on  public  men  before  the  courts, 
at  one  time  by  ostracism,  and  to  some  extent  by  political 
clubs.  At  Rome  there  was  long  and  earnest  strife  between 
the  parties  which  arose  after  the  fall  of  the  kings,  until  at 
length  every  office  was  opened  to  the  citizens,  irrespective  of 
birth.  After  this  the  tendency  appears  towards  oligarchy 
and  ochlocracy  ;  and  the  personal  element,  the  sway  of  a 
single  man  over  multitudes,  is  on  the  increase.  The  later 
years  of  the  republic  read  us  a  satire  on  parties.  The  lower 
class  of  citizens  have  lost  their  independence  of  character. 
A  struggle  for  power  between  two  great  leaders  points  towards 
an  imperial  tyrannis.  The  elections  are  carried  on  with  the 
most  shameful  bribery.  The  active  partisans  consist  of  the 
chief  and  his  friends,  some  of  whom  must  manage  the  lower 
classes,  others  the  senate  if  possible,  others  command  the 
armies.  But  there  are  two  points  of  gravity  which  need  to 
be  especially  watched — the  senate  and  the  people — the  latter, 
mainly,  as  being  subject  to  the  influence  of  the  tribunes. 
The  old  dualism  of  power  shows  itself  in  a  somewhat  new 
form,  and  is  hastening  Rome  on  to  its  ruin. 

The  danger  of  a  democratic  empire  is  the  natural  and  great 
danger  of  a  dcmocrac)'.  Disruption,  or  a  kingly  govern- 
ment, is  by  no  means  so  great  an  evil.  But,  as  we  have  said 
before,  among  us,  the  separate  states,  many  of  them  now 
with  old  habits  of  self-government  and  with  histories  of  their 


POLITICAL  PARTIES. 


557 


own,  will  be  a  barrier — may  they  prove  an  eft'ectual  and 
lasting  barrier — to  such  a  consolidation. 

Whenever  a  matter  of  immediate  interest  is  to  be  gained 
by  combination  and   discussion,  the  feelings 

violence  of  parties.  .  .  , 

become  uitense,  so  that  the  most  false,  wide- 
sweeping  remarks  in  disparagement  of  the  opposite  party  are 
continually  uttered.  Political  unions  and  important  measures 
alone  do  not  excite  the  feelings  more  than  questions  between 
religious  parties  excite  them  ;  in  both  spheres,  trivial  matters 
are  enormously  magnified.  The  violence  of  expression  will  be 
in  proportion  to  the  general  tone  of  manners ;  if  that  will  not 
endure  vituperation  and  anger,  the  violence  of  party  will  be 
under  a  restraint.  In  this  excited  state  many  things  will  be 
said  and  done  which  men,  those  most  concerned  in  them, 
will  regret  afterwards. 

But,  after  all,  the  violence  is  not  so  bad  as  the  tone  of  char- 
acter, the  want  of  honor  which  admits  cool-blooded  misrep- 
resentation and  trickery  among  the  means  of  injuring  an 
adversary.  The  violence  injures  those  most  who  make  the 
most  use  of  it,  but  the  misrepresentations  and  tricks  of  parties 
corrupt  a  whole  people,  and  if  one  side  resorts  to  them,  the 
other  will  be  tempted  in  self-defense  to  do  the  same. 

Parties  must  have  some  sort  of  moral  cement  to  bind  them 
Allegiance  to  par-  together,  and  they  need  this  the  more  if  they 
allow  base  things  to  be  done  for  the  promotion 
of  party  interests.  The  worse  the  parties  arc  and  the  more 
selfish,  their  one  rule  will  more  and  more  be  to  stick  together. 
Allegiance  is  broken  if  a  man  deserts  his  party,  and  the  abuse 
is  so  strong  when  individuals  do  this,  that  a  vast  amount  of 
moral  courage  is  needed  to  make  the  change.  Only,  when 
numbers  go  over  together,  they  will  keep  each  other  in 
countenance.  This  principle,  which  puts  partisanship  in  the 
room  of  patriotism  and  fear  in  that  of  conviction,  only  re- 
tards the  death  of  a  party  that  is  mortally  wounded  already. 
But  it  debases  character  more  than  almost  anything  else. 
The  fear  of  public  opinion  in  a  free  country,  where  character 
and  motives  arc  discussed  without  reserve,  is  strong  enough 


558 


POLITICAL  SCIENCE. 


to  make  cowards  of  most  men  ;  but  when  it  becomes  a  moral 
principle  that  a  man,  if  a  representative,  owes  it  to  his  party 
to  vote  with  it  through  thick  and  thin,  and  is  bound,  if  only 
a  private  citizen,  to  support  the  regular  candidate,  there  is  a 
turning  of  moral  rules  upside  down  which  may  corrupt  the 
character  of  a  whole  country. 

272. 

In  speaking  of  parties  in  the  United  States,  I  refer  more 
Parties  in  the  United  Particularly  to  parties  formed  on  general  ques- 
tions  relating  to  the  administration  of  our  na- 
tional affairs.  These,  in  fact,  pervade  the  country,  and  make 
minor  differences  less  important.  There  will  always  be  com- 
binations in  states  or  sections  to  carry  something  of  local 
interest,  which  may  oppose  for  the  time  the  general  interests 
of  parties.  But  such  divisions  cease  when  they  have  accom- 
plished their  purposes,  while  the  parties  running  through  the 
union  are  kept  up,  even  when  there  is  no  reason  for  their 
existence. 

We  have  already  seen  that  our  parties  were  the  result  of 
our  constitution  and  of  the  great  difference  of  interests  or  way 
of  thinking  between  the  slaveholding  and  the  free  states. 
For  a  few  years  the  federal  union  needed  all  energy  and  abil- 
ity to  support  it,  and  during  this  time  power  wiis  lodged  in 
the  upright  federal  party.  Then  it  passed  over  to  the  demo- 
crats, whose  sway  continued  nearly  all  of  the  next  sixty  years. 
Most  of  this  time  it  was  southern  leaders  who  shaped  the 
policy  of  the  country,  and  it  was  these  who,  by  resolving  to 
secede  in  1861,  brought  on  the  war.  At  the  restoration  of 
the  union,  the  party  which  carried  the  war  through  to  a  suc- 
cessful issue,  and  which  may  be  called  a  second  federal  party 
on  account  of  some  of  the  principles  they  were  obliged  to 
adopt  for  the  defence  of  the  country,  was  entrusted  with  pub- 
lic affairs  and  is  at  the  helm  while  we  write  ;  but,  owing  in 
part  to  difficulties  which  the  war  bequeathed  to  the  country, 
in  part  to  the  essential  evils  attendant  on  party  management, 
in  part  to  the  incapacity  of  the  government,  this  party  bids 


POLITICAL  PARTIES, 


559 


fair  to  lose  public  confidence,  and  to  render  some  other  com- 
binations necessary.  And  here  we  are  brought  to  the  pecu- 
liarities of  our  party  systems,  their  results  on  national  charac- 
ter, and  to  the  question  whether  remedies  can  be  successfully 
applied  for  the  cure  of  their  too  obvious  evils. 

The  lines  within  which  parties  move  in  this  country  are 
somewhat  narrow.  To  a  great  extent,  questions  of  foreign 
relations  lie  outside  of  them.  There  is  hardly  a  question  of 
importance  now  touching  external  intercourse,  on  which  the 
country  would  separate  according  to  party  divisions.  For- 
eign wars  are  not  looked  upon  as  probable,  unless  with  weak 
powers  in  our  neighborhood,  and  these  would  be  short,  isola- 
ted occurrences. 

Within  the  lines  where  party  can  move,  it  may  be  by  our 
consitution  unable  at  once  to  get  possession  of  the  administra- 
tion. We  have  already  said  that  the  national  parties,  in. 
great  measure,  control  and  direct  those  in  the  states.  Hence, 
these  national  parties,  when  they  have  once  elected  the  presi- 
dent of  their  choice,  are  tolerably  sure  of  a  very  important 
control  for  at  least  four  years.  Even  if  a  majority  in  both 
houses  should  be  against  the  president,  they  could  not  have 
their  own  way  in  managing  the  government.  His  veto,  his 
appointing  power,  his  direction  through  his  cabinet  of  all  for- 
eign affairs,  of  the  treasury,  of  the  post-office,  the  army  and 
the  navy,  remain  untouched.  It  is  conceivable  that  a  presi- 
dent, with  the  two  houses — especially  with  the  senate — against 
him,  might  encounter  much  factious  opposition  ;  that  he  might 
be  obstructed  in  doing  what  was  his  unquestioned  work  ;  but 
the  plot,  if  there  were  one,  to  force  him  into  a  compromise 
within  his  own  sphere,  would  only  recoil  on  its  inventors. 

The  president,  then,  for  his  four  years,  is  not  only  a  power, 
but  a  personal  power.  There  is  no  denying  that  a  self-willed 
man  in  that  place  is  intrenched  by  the  constitution  in  a  fort- 
ress that  cannot  at  once  be  taken.  This  personal  power  is 
made  up  not  so  much  of  his  having  political  opinions,  as  of 
the  appointments  to  f)ffice' which  arc  under  his  control,  imme- 
diately or  directly.    This  power  of  appointment  has  presented 


POLITICAL  SCIENCE, 


a  problem  as  yet  unsolved,  the  importance  of  which  was  never 
fully  comprehended  by  the  people  or  by  the  makers  of  the 
constitution.  There  was  a  degree  of  doubt  at  first  whether 
the  power  to  appoint  involved  the  power  to  remove,  and 
whether  the  President's  undoubted  power  to  fill  up  vacancies, 
that  might  happen  during  the  recess  of  the  senate,  extended 
to  such  vacancies  as  were  created  by  his  own  act  of  removing 
an  officer  after  the  adjournment  of  the  senate.  In  the  first 
congress  Mr.  Madison  contended  that  the  wanton  removal  of 
meritorious  officers  would  subject  the  president  to  impeach- 
ment and  removal  from  his  own  high  trust.  It  was,  however, 
generally  admitted  that  the  president  could  remove  from 
office,  and  that  his  motives  could  not  properly  be  subject  to 
examination  ;  and  so  this  exercise  of  power  has  remained 
with  him  until  the  present  day.  In  regard  to  the  other  ques- 
tion, precedent  has  established  that  he  may  create  a  vacancy 
without  alleging  reasons.  He  and  those  who  act  under  him 
can  either  appoint  directly  by  law,  or  a  confirmation  is 
needed  from  the  senate.  This  body  will  naturally  confirm 
the  cabinet  officers,  unless  in  extreme  cases,  on  the  ground 
that  the  chief  magistrate  ought  not  to  be  interfered  with  in 
the  selection  of  his  own  especial  advisers  and  servants. 

As  the  president  is  thus  made  the  dispenser  of  power  and 
of  office  to  a  vast  extent,  his  personal  influence  may  be  said 
to  reach  to  all  the  states,  counties,  and  towns  through  the 
whole  land.  As  the  sovereign  is  the  fountain  of  honor  in 
England,  so  the  president  is  the  fountain  of  office  wherever 
there  is  a  national  office  to  be  filled.  But  he  is  such  within 
the  party  which  elected  him.  It  is,  indeed,  quite  possible 
for  him  to  disregard  all  party  claims  whatever,  and  to  look 
after,  or  see  that  his  subordinates  'ook  after,  the  fittest  man  ; 
but  it  has  been  found  hitherto  nearly  impossible  to  carry  out 
such  a  rule  very  far.  Or  he  may  stop  short  of  this,  and  make 
it  a  rule  to  continue  the  present  officials  in  their  places  (al- 
though they  are  of  opposite  polities')  until  they  are  pro\'ed 
to  be  inefficient  or  untrustworthy.  Ikit  such  would  be  the 
pressure  upon  him  to  swerve  from  cither  of  these  rules,  such 


POLITICAL  PARTIES. 


56i 


would  be  the  opposition  from  his  own  party  in  the  senate,  or 
from  the  cabinet,  that  few  men  could  have  the  courage  to 
hold  out  in  a  steady  course  of  following  their  own  convictions 
in  circumstances  like  these.  The  senators — rwv  o'L  vvv  ^poroi 
elcriv  l'Tn-)(^ovioL — would  refuse  to  confirm  his  appointments 
unless  he  confirmed  theirs,  and  the  question  would  be  who 
would  hold  out  longest.  Thus  the  rules  of  political  morality, 
never  to  remove  a  man  who  has  done  his  part  well  from  the 
humbler  offices  of  the  government,  and  never  to  nominate 
without  proof  of  proper  qualifications,  which  would  prevent  a 
world  of  corruption,  are  practically  impossible,  because  the 
politicians  who  fill  important  places  in  congress  will  form  a 
kind  of  junto  to  aid  each  other  and  the  friends  of  each  other. 
And,  although  the  president  has  great  official  power,  he  has 
little  resisting  power.  They  can  trouble  him  far  more  than  he 
can  trouble  them.  Unless  made  of  angelic  stuff  or  of  iron, 
he  must  yield.  The  multitude  who  have  an  interest  in  cor- 
rupt politics  are  stronger  than  the  one. 

The  progress  of  party  tactics  is  illustrated  especially  by  two 
facts.  The  first  is  that,  when  the  democratic  party  came  into 
power  with  the  election  of  Mr.  Jefferson,  the  removals  were 
few — so  few  that  single  cases  excited  a  sense  of  wrong  through 
a  whole  state.  When  Jackson  followed  John  Ouincy  Adams 
in  1829,  they  were  far  more  numerous,  although  the  political 
change  was  little  else  than  the  displacement  of  one  wing  of  a 
party  by  another.  Since  then  no  party  has  thought  of  pro- 
testing against  removals  on  mere  party  grounds,  and  against 
putting  in  the  "  friends  "  of  the  successful  candidate.  The 
other  fact  is  that  a  civil  service  bill  was  projected  a  few  years 
'  ago,  in  order  to  put  an  end  to  the  worst  of  the  effects  of  the 
present  custom.  The  president  professed  to  view  it  with 
favor.  There  was  to  be  an  examination  of  persons  proposed 
for  offices  of  inferior  grades,  and  the  successful  candidates 
were  to  be  the  seminary  for  higher  offices  ;  or,  at  all  events, 
some  check  was  to  be  put  on 'he  selection  of  candidates.  But 
senators  opposed  the  plar),  some  cabinet  officers  refused  to 
have  it  apply  within  their  bureaus,  and  at  length  it  fell  to 
VOL.  II.  — 36 


562 


POLITICAL  SCIENCE. 


nothing ;  the  man  who  had  consented  to  endeavor  to  make  it 
successful  gave  up  the  work  in  discouragement  and  mortifi- 
cation.* 

If  what  we  have  said  is  true  respecting  the  distribution  of 
offices  in  reward  for  poHtical  services,  or  in  the  hope  of  secur- 
ing pohtical  supporters,  it  is  plain  that  such  a  system  must 
require  an  organization  of  the  whole  country  that  it  may  be 
successful.  The  extent  to  which  such  organization  has  gone, 
and  the  means  which  have  been  adopted,  are  even  startling. 
The  clerks  in  the  departments  in  Washington  have  been  called 
on  for  contributions  to  defray  the  expenses  of  "campaigns," 
as  they  are  called,  and  have  in  some  instances  been  sent  home 
to  their  respective  states  to  vote.  The  local  officers  of  the 
general  government  have  managed  state  elections,  and  have 
mingled  officiously  in  local  politics.  Meetings  through  the 
states,  on  the  greater  or  on  the  smaller  scale,  are  called  and 
led  by  men  of  whom  nobody  knows  anything  which  inspires 
confidence,  whose  only  gift  is  by  means  of  underlings  to  get 
at  the  ear  of  the  lower  stratum  of  the  people.  These  men  a 
party  cannot  afford  to  trifle  with,  for  if  they  render  no  service 
or  become  enemies  of  their  party,  it  runs  a  risk  of  losing  the 
election. 

In  state  affairs,  party  is  not  generally  so  carefully  watched 
and  managed  as  in  national  affairs,  since  the  prizes  are  not  so 
great.  It  often  happens  that  local  questions  separate  frac- 
tions of  a  party  from  the  main  body  for  a  time,  if  not  perma- 
nently. But  the  same  principle  of  reward  for  party  services 
is  acted  upon  throughout,  and  it  is  impossible  to  disconnect 
state  and  national  politics  for  any  length  of  time. 

The  management  of  parties  by  means  of  subordinate 
leaders  appears  in  the  way  in  which  the  voters  belonging  to 
foreign  nationalities  are  made  to  act  together.  In  a  country 
of  equal  rights  it  seems  most  unreasonable  that  foreign  emi- 

*  While  we  arc  revising  these  pages,  a  new  plan  of  civil  service  has 
come  in  with  a  new  administration,  which,  if  llie  politicians  are  not 
too  .strong  for  the  heads  of  the  government,  will  be  an  immense  bless- 
ing [March,  1877]. 


POLITICAL  PARTIES. 


563 


grants  should  not  be  assimilated  in  a  short  time  to  the  native 
population.  Why  should  a  German  or  an  Irishman  retain 
his  nationality  to  such  an  extent  as  to  claim  a  right,  not  as  an 
American  citizen,  but  as  a  person  born  in  a  particular  foreign 
country,  to  have  office  on  different  terms  from  citizens  of 
native  birth.  Why,  in  other  words,  should  any  one  claim  a 
right  of  partaking  in  office  not  merely  as  a  citizen,  but  for  the 
additional  reason  that  he  was  not  by  birth  entitled  to  office. 
The  thing  is  preposterous.  But  then  there  is  a  certain  tie 
binding  these  citizens  and  their  children — it  may  be  their 
remoter  posterity,  together  ;  and  this  tie  of  former  nationality, 
with  the  additional  tie  of  a  special  religion  in  one  case,  ren- 
ders it  possible  (nay,  renders  it  easy)  to  band  these  classes  of 
citizens  together.  They  can  thus  be  managed  as  bodies,  and 
demagogues,  seeing  how  great  facilities  are  thus  furnished 
for  their  game,  contrive  to  act  as  agents  of  politicians  in 
securing  large  masses  of  voters  for  their  principals,  and  in 
establishing  claims  of  their  own  on  the  victorious  leaders. 
The  same  operation  must  go  on  where  masses  of  colored 
people  are  exposed  to  the  influence  of  crafty  men  of  their 
own  color.  Where  voters  are  unable  to  cast  an  intelligent 
vote  there  will  be  more  or  less  of  such  political  craft,  and 
demagogues  of  all  demagogues  least  to  be  trusted. 

A  very  important  point  in  any  political  system,  and  one 
deeply  affecting  the  character  of  a  self-governing  people,  is 
the  means  taken  to  bring  the  names  of  persons  thought  of 
for  office  before  the  constituencies.  In  a  part  of  the  country 
it  has  long  been  felt  to  be  an  impropriety  for  a  man  to  offer 
himself  as  a  candidate  for  public  honors,  as  if  such  a  public 
e.vprcssion  of  his  desire  were  inconsistent  with  equality  and 
with  modesty.  And  yet  even  where  this  opinion  is  held,  the 
immediate  friends  of  a  man  will  sometimes  put  him  forward 
against  the  party  candidate,  on  account  of  some  rebuff  that 
he  has  met  with.  The  desire  of  punishing  the  party  by  at 
least  drawing  away  votes  from  it  now  justifies  what  is  all  but 
self-nomination.  Rut  on  the  whole,  in  the  northern  and 
eastern  parts  of  the  country,  nomination  through  the  regular 


POLITICAL  SCIENCE. 


party  conventions,  in  the  composition  of  which  not  one  voter 
in  a  hundred  has  a  share,  and  the  members  of  which  are 
scarcely  known  beyond  the  conventions  themselves — such 
nomination  is  thought  to  be  alone  decorous,  and  it  enables 
the  voters  to  know  whom  to  vote  for.  This  saving  of  trouble, 
this  assistance  given  to  people  in  discharging  their  political 
duties  with  the  least  expense  of  time,  is  probably  the  main 
cause  why  the  caucus  system  of  nomination  for  office  by 
agents  of  a  party  has  found  favor  and  struck  root  everywhere. 
In  the  olden  time,  during  our  colonial  existence,  and  a  little 
after,  there  was  no  difficulty  in  making  selections,  on  the 
principle  that  a  tried  public  man  ought  not  to  be  laid  aside. 
But  when  frequent  changes  took  the  place  of  this  conserva- 
tism, there  was  need  to  know  whom  to  elect ;  the  people  in 
the  town  meetings  found  it  convenient  to  have  some  prepara- 
tory or  nominating  committee  ;  and  so  there  grew  up  more 
secret,  deliberative,  irresponsible  bodies,  where  the  electors 
could  not  well  attend,  or,  if  present,  would  discover  that  they 
were  not  wanted,  or,  if  they  took  affairs  into  their  own  hands, 
would  provoke  the  caucus  leaders  to  hold  meetings  some- 
where else.  The  necessity  for  the  existence  of  such  caucuses 
or  conventions  was  further  impressed  on  the  active  politicians 
by  the  importance  of  having  an  understanding  between  the 
different  parts  of  the  state,  so  that  a  party  could  be  sure  of  a 
body  of  representatives  who  would  carry  out  its  measures. 
Thus  the  parties  of  the  union  weigh  down  on  the  states,  the 
parties  in  the  states  weigh  down  on  the  towns,  general  con- 
cert is  the  word,  and  independence  is  extinguished. 

All  the  country,  however,  has  not  been  equally  under  the 
control  of  caucuses,  as  far  as  the  selection  of  nominees  for 
office  is  concerned.  In  the  southern  and  southwestern  states 
men  proposed  themselves  and  went  "  stumping,"  as  it  was 
called  (that  is,  speaking  from  stumps  of  hewn  trees),  through 
their  districts.  The  opposite  candidates  travelled  together, 
attacked  each  other's  positions,  answered  hard  questions,  and 
in  the  course  of  the  meeting  gave  the  voters — many  of  whom 
could  not  read — an  intelligible,  if  a  partial,  view  of  public 


POLITICAL  PARTIES. 


565 


affairs.  This  attached  a  successful  candidate  to  his  district ; 
it  was  a  cord  that  sometimes  pulled  against  the  party  ropes  ; 
he  felt  that  he  might  be  called  to  account  at  the  next  mass 
meeting  for  opinions  expressed  and  promises  given  ;  he  had, 
in  fact,  placed  over  himself  a  body  of  watchmen  and  supervi- 
sors of  a  far  better  kind  than  a  general  party  had  to  offer. 
Why  should  a  system  of  self-nomination  be  disparaged,  when 
it  has  had  full  career  in  two  of  the  manliest  nations  of  the. 
world,  Rome  and  England  ?  Has  it  led  to  bribery  and  trick- 
eries at  elections  ?  Not  more  than  the  other.  Did  it  bring 
inferior  men  into  public  magistracies  at  Rome,  into  parlia- 
ment in  England  ?  Undoubtedly  family  connection  and  influ- 
ence have  brought  inferior  men  into  public  life  in  both  coun- 
tries ;  but  where  can  we  find  men  superior  to  those  to  whom 
the  same  method  of  self-nomination  opened  the  way  into  long 
and  illustrious  service  of  their  country  ? 

In  estimating  the  quality  and  characteristics  of  our  political 
life,  we  ought  to  consider  that  within  seventy-five  years  uni- 
versal suffrage  has  superseded  property  qualifications  wherever 
they  existed  (and  they  were  known  to  all  the  early  colonies), 
and  that  immense  numbers  of  uneducated  foreigners  have 
spread  over  all  the  northern  states,  while  the  enfranchisement 
of  the  colored  people  at  the  south  has  rendered  the  conferring 
of  the  suffrage  on  them  a  practical  necessity.  The  writer  of 
these  lines  was  taught  in  his  boyhood  that  a  wide  suffrage 
was  a  very  serious  evil,  and  the  doctrine  continued  to  be  com- 
mon long  after  democracy  was  triumphant  in  national  affairs. 
James  Kent  and  Martin  Van  Burcn,  of  Xew  York,  the  great 
civilian  and  the  democratic  president,  united  in  expressing 
their  apprehensions  of  it  in  a  convention  for  revising  the  con- 
stitution of  New  York,  in  1822.  At  present  multitudes  have 
the  same  faith,  but  regard  it  as  hopeless  to  take  steps  back- 
ward, unless  at  some  future  day  socialistic  agitations  should 
render  restrictions  on  suffrage  a  measure  of  public  safety  ; 
and  they  put  all  their  hopgs  for  the  future  in  a  better  educa- 
tion— perhaps  compulsory  on  all,  and  in  an  intelligent  farming 
population.    Two  states  alone,  we  believe,  make  ability  to 


565 


POLITICAL  SCIENCE. 


read  a  qualification  for  the  exercise  of  the  privileges  of  the 
voter. 

The  problems  of  a  party  kind  are  so  mixed  up  with  the 
social  problems  in  the  large  towns  that  there  is  danger  of  un- 
fair treatment  of  the  former.  Thus  much,  however,  all  will 
admit,  that  nowhere  are  party  ties  drawn  tighter  than  in  the 
cities,  nowhere  is  the  organization  more  complete,  nowhere 
is  there  so  close  an  approach  to  the  arts  and  ways  of  the 
ancient  demagogy,  and  nowhere  is  there  worse  management 
in  regard  to  all  general  interests.  The  constituencies  which 
elect  embezzlers  and  peculators  to  office,  such  as  we  have  all 
known  of  in  late  years,  are  incapable  of  judging  of  qualifica- 
tions for  office  ;  it  is  the  fault  of  those  who  take  advantage  of 
the  system,  and  not  their  fault  that  bad  men  are  chosen — any 
more  than  it  is  the  fault  of  the  horses  when  a  drunken  driver 
turns  the  carriage  over  into  a  ditch.  And  how  this  great  evil, 
which,  by  exorbitant  taxation,  will  ruin  great  cities,  can  be 
stopped,  I  do  not  see,  except  by  legislation  which  will  allow 
the  tax-payers,  and  them  only,  to  have  a  vote  in  the  assess- 
ments.  (Comp.  <^  239.) 

An  evil,  especially  in  the  towns,  growing  out  of  the  extent 
of  suffi-age,  is  the  apathy  of  persons  of  intelligence  and  stand- 
ing in  regard  to  public  affairs.  Their  minds  are  absorbed  in 
business.  Their  profits  are  considerable,  and  they  pay  taxes 
without  complaint,  believing  all  the  while  that  the  system  of 
municipal  affairs  is  deplorably  mismanaged.  If  this  great  dis- 
regard of  political  duties  could  be  unlearned,  and  if  municipal 
affairs  could  be  kept  apart  from  state  and  national  politics, 
there  would  be  good  hope  that  this  slough  of  despond  could 
be  drained  off. 

But  suppose  all  the  better  part  of  society,  those  who  have 
intelligence  and  those  who  have  character,  to  be  faithful  in 
discharging  their  political  duties — suppose  them  to  be  neither 
discouraged  nor  overawed,  how  are  they  to  act  in  the  purifi- 
cation of  parties  ?  Can  they  do  good  by  forming  a  new  or 
third  party,  intended  to  serve  as  a  check  on  the  two  others  ? 
If  successful,  this  would  draw  to  it  bad  materials  from  the 


POLITICAL  PARTIES. 


567 


existing  parties,  and  would  soon  become  corrupt  itself.  Can 
they  accomplish  their  work  by  entering  into  the  other  parties, 
according  to  their  political  convictions,  and  insisting  on  hav- 
ing a  share  in  all  those  primary  arrangements  for  office, 
caucuses,  conventions,  and  the  like,  of  which  they  complain 
so  much  now  ?  The  probability  is  that  they  would  be  met 
and  worsted  by  new  intrigues,  without  gaining  anything  for 
the  cause  of  political  honesty.  I  see  no  way  in  which  they 
could  act  so  well  as  by  acting  within  the  existing  parties,  and 
yet  determining  to  cast  their  votes,  each  individual  for  himself, 
for  no  one  who  is  a  political  intriguer  or  untrustworthy  man. 
They  act  in  this  case  without  any  forced  combination,  by  the 
power  of  a  vote  which  is  silent,  but  well  understood.  Sup- 
pose this  to  begin  in  one  of  the  parties,  and  that  this  party 
loses  the  election  on  account  of  such  independent  action. 
Can  the  party  fail  thenceforth  to  make  a  selection  of  better 
men  ?  and  if  this  is  to  be  its  principle,  will  not  the  other  be 
compelled  to  be  more  careful  in  choosing  its  candidates  ?  If 
thus  there  is  understood  to  be  a  quiet  body  in  both  parties 
which  will  rebuke  all  improper  selections  for  office,  this  one 
thing  will  go  far  towards  creating  a  moral  revolution  in  state 
and  in  country.  Staying  away  from  the  polls  on  account  of 
the  badness  of  parties  is  an  unworthy  course;  but  going  there 
and  rebuking  your  party  for  its  improper  candidates  is  some- 
thing honorable  for  every  good  citizen  to  do. 

In  regard  to  the  nomination  of  candidates  for  office,  I 
should  be  glad  to  see  the  plan  of  offering  one's  self  to  one's 
fellow-citizens  tried  on  such  scale  and  for  such  a  length  of 
time  as  to  take  away  all  novelty  and  destroy  old  prejudice. 
This,  in  the  case  of  inferior  officers  chosen  by  the  people, 
would  not  call  for  speeches  of  candidates  ;  but,  when  impor- 
tant elections  were  made,  it  would  compel  the  voters  to  be- 
come more  familiar  with  the  great  cjuestions  that  divide  par- 
ties than  they  arc  now  ;  and  candidates  might  with  advantage 
be  called  before  the  voters  to  advocate  their  respective  opin- 
ions. 


CHAPTER  XV. 


POLITICAL  CHANGES. 
§  273. 

A  STATE  that  is  not  built  on  caste  or  shut  up  within  itself 
Causes  of  political        non-intercoursc  with  the  rest  of  the  world, 
changes.  cannot  escape  the  changes  that  affect  the  con- 

dition of  society,  and  through  them  the  state  of  opinion  and 
the  other  causes  on  which  political  systems  themselves  depend 
for  their  stability.  Even  China  has  not  been  able  to  avoid 
changes  produced  from  abroad  (those  resulting  from  the 
conquest  by  the  Mongols),  and  from  within,  which  have 
shown  themselves  in  various  revolutions.  Nor  has  India, 
with  a  system  most  wonderfully  devised  for  permanence, 
been  able  to  resist  foreign  influences  which  now,  at  length, 
seem  to  be  undermining  the  old  institutions  of  Brahminism  ; 
nor  were  these  institutions  able,  more  than  two  thousand 
years  ago,  to  suppress  without  a  struggle  the  reformatory 
movements  of  Buddhism,  which  at  one  time  seemed  about 
to  control  the  whole  peninsula.  It  was  the  greatness  of  the 
change,  apparently,  the  danger  of  the  abolition  of  caste  and 
of  the  fall  of  Brahminism,  that  roused  the  leaders  of  society 
to  a  struggle  which  slow  and  silent  changes  would  not  have 
provoked. 

Changes  may  be  silent  and  unperceived  in  their  action  on 
society  and  on  thinking,  or  thc\-  may  be  open  and  manifest. 
Thus,  they  may  be  of  such  a  kind  as  not  to  be  provided 
against,  or  they  may  give  notice  of  their  approach  by  what 
they  had  done  in  some  other  country.  They  may  appear  in 
such  a  shape  that  all,  even  the  most  conservative,  the  most 
uncompromising,  will  welcome  them,  and  in  the  end  they 
may  turn  out  to  be  the  most  sweeping  and  revolutionary  of 


POLITICAL  CHANGES. 


569 


all  causes.  They  may  be  entirely  beyond  the  reach  of  pre- 
vention by  any  causes,  material  or  spiritual — as  much  so  as 
plagues  and  other  distempers  ;  or  there  may  be  no  prevention 
\vithin  reach  as  long  as  the  existing  organization  of  society 
continues.  As  Thomas  of  Sarzano  became  pope  in  1447, 
under  the  name  of  Nicholas  V.,  he  saw  no  signs  of  evil  to 
the  church  in  the  humanism  to  which  he  had  long  been  de- 
voted ;  he  encouraged  Greek  and  Roman  learning,  and  founded 
the  Vatican  library.  Yet  it  is  now  clear  that  these  new  stud- 
ies broke  up  the  stagnation  of  thought,  became  rivals  of  theo- 
logical learning  and  even  threw  it  into  the  shade,  spread  a 
love  for  liberty  and  a  spirit  of  free-thinking  after  the  antique 
pattern  among  Italian  scholars,  and  were  one  of  the  leading 
causes  of  the  general  revolution  which  became  manifest  in 
Europe  in  the  middle  of  the  fiftccntlii  century. 

The  old  political  writers  were  familiar  enough  with  political 
changes,  and  we  shall  ere  long  go  back  to  Aristotle  for  some 
of  his  results  as  drawn  from  the  history  of  the  Greek  cities, 
and  brought  into  a  philosophical  form.  But  as  they  had 
small  experience  of  the  operation  of  spiritual  causes  on  a  large 
scale  in  changing  opinion  within  the  political  sphere,  the 
power  of  such  causes  they  could  not  duly  estimate.  And 
although  Plato  was  well  aware  of  the  necessity  of  religion  in 
conserving  political  order,  Aristotle  has  very  little  to  say  on 
this  matter.  In  fact,  I  have  found  no  passage  where  he  con- 
templates what  the  effect  might  be  of  such  a  general  atheism 
and  irrcligion  as  that  which  soon  followed  his  era.  The  power 
of  judging  with  justice,  concerning  the  vast  influences  of  spir- 
itual and  social  causes  upon  the  forms  and  spirit  of  govern- 
ments, was  never  within  the  reach  of  the  human  mind  until 
a  general  unity  of  thinking  had  been  caused  in  the  Christian 
world  by  Christianity,  and  until  under  its  protection  other 
agents  in  modern  civilization  had  given  each  its  contribution 
to  modern  times.  The  case  of  spreading  ideas  all  over  the 
civilized  world  gives  rapjdity,  energy,  and  distinctness,  to 
every  new  turn  of  human  thought. 

Some  of  these  causes  of  change  act  directly  on  political 


570 


POLITICAL  SCIENCE. 


forms  ;  others  act  indirectly.  We  will  consider  the  former, 
which  are  fewer  n  number,  first,  and  then  pass  over  to  the 
others. 

We  mention  first,  example,  as  propagated  from  place  to 
place.  To  this  cause  the  Greek  states,  so  many  in  so  small 
an  area,  were  extensively  subject.  We  cannot  account  for 
the  frequent  tyrannies  following  one  another  in  the  age  of  the 
earlier  tyrannis,  nor  for  the  democratic  revolutions  after- 
wards, by  the  existence  of  a  common  moving  sentiment  and 
a  similar  condition  alone.  The  news  of  revolution,  as  it 
spread  over  Greece,  added  fuel  to  a  fire  all  ready  to  burst 
out ;  and  so,  on  the  other  hand,  the  news  of  their  unfortunate 
issue  in  particular  cases  may  have  damped  the  ardor  of  a  city 
ready  to  change  its  polity.  So,  also,  it  is  likely  that  the  vari- 
ous city  institutions  of  the  middle  ages  did  not  begin  without 
some  knowledge  of  movements  elsewhere,  in  the  same  direc- 
tion. In  modern  times  the  example  of  England,  its  govern- 
ment securing  liberty  and  order,  created,  in  a  sense,  the 
"  spirit  of  the  laws,"  and  preached  constitutional  government 
all  over  Europe.  Nor  has  the  revolution  of  1776,  in  this 
country,  been  without  a  vast  influence  by  way  of  example 
over  Spanish  America,  in  Switzerland,  and  in  France. 

Still  more  potent  are  new  political  and  politico-moral  prin- 
ciples. Few  will  deny  that  the  modern  doctrines  of  personal 
rights,  and  of  a  people's  self-governing  right,  whether  in  their 
milder  Anglican  or  more  revolutionary  French  form,  have  had 
a  vast  influence  in  aiding  all  other  concurrent  causes,  such  as 
the  feeling  of  being  oppressed,  discontent  with  the  existing 
government,  and  the  struggles  of  orders.  And  although  in 
themselves  they,  may  be  dead,  being  alone,  yet  when  thus 
employed  as  allies,  they  may  remove  scruples  fiom  the  con- 
sciences of  many,  and  intensify  the  sense  of  wrong. 

This  doctrine  of  human  rights  and  of  human  equality  has 
reached  its  greatest  height  of  power  in  defending  and  redeem- 
ing the  colored  race  from  slavery.  Scarcely  ever  has  an  en- 
slaved race  been  led  to  attempt  its  own  liberation  by  the 
mere  feeling  of  being  held  in  unjust  bondage  ;  nearly  all  the 


POLITICAL  CHANGES. 


movements  having  this  in  view  have  come  from  the  sense  of 
human  rights  acting  on  the  humane  or  the  fanatical  freeman. 
We  need  only  refer  to  the  emancipation  of  the  slaves  in  the 
British  West  Indies,  with  pecuniary  compensation  to  their 
masters  ;  to  the  late  war,  which,  but  for  the  cry  of  "  abolition," 
would  never  have  broken  out,  and  to  the  extinction  of  serfdom 
in  Russia. 

Another  theory  or  doctrine,  which  is  now  uniting  men  all 
over  the  Christian  world,  is  that  of  the  socialists,  which  looks 
forward  to  a  revolution  in  society  greater  than  any  that  has 
been  known  since  the  foundation  of  the  world,  and  would 
have,  if  it  could  be  realized,  greater  effects  for  a  time,  than 
those  to  which  it  looks  forward.  We  have  already  spoken 
of  communism  in  its  earlier  form,  and  of  the  social  theory 
(^'^  103,  104),  and  incidentally  of  the  socialistic  doctrine  con- 
cerning property  in  the  soil.  We  need  only  refer  to  its  prin- 
ciples in  regard  to  wages  and  to  the  position  of  the  capitalist 
towards  the  manual  laborer,  to  its  doctrine  of  inheritance, 
and  to  that  extensively  held  by  its  leaders  concerning  mar- 
riage, religion,  and  God,  as  indicating  an  opposition  to  the 
whole  framework  of  existing  society — an  opposition  as  entire 
as  that  between  materialism  and  atheism  on  the  one  hand, 
and  God  and  providence  on  the  other.  There  can  be  no 
terms  between  such  a  plan  of  society  for  the  future  and  the 
existing  one.  But  there  is  danger  that  the  feeling  condemn- 
ing most  of  its  doctrines  may  keep  men  from  condemning 
whatever  social  evils  have  helped  socialism  forward.  There 
is  reason  to  believe  that  it  derived  its  origin  from  abuses  in 
the  social  system  co-operating  with  an  abstract  and  partly 
false  theory  of  the  rights  of  man.  Neither  cause  could  pro- 
duce permanent  results,  but  let  not  evil  in  society  be  defended 
by  the  argument  that  the  socialists  complain  of  it. 

We  turn  next  towards  some  of  the  causes  which  act  indi- 
rectly on  political  forms,  chiefly  through  opinion,  and  in  part 
by  raising  up  new  powers  in  society  which  insist  on  having 
their  rightful  and  proportionate  influence.  The  first  of  these 
is  religion,  whether  it  appears  in  the  shape  of  a  new  faith  or 


572 


POLITICAL  SCIENXE. 


in  that  of  the  claims  of  a  new  church,  or  in  that  of  the  decay 
of  rehgious  behef  and  the  spread  of  scepticism. 

Every  vigorous  and  earnest  society  contains  a  large  number 
of  persons  who  value  their  religious  convictions  above  all 
other  things,  and  are  prepared  to  resist  any  change  or  intru- 
sion of  novel  religious  faith  or  worship.  In  states  where 
there  is  no  liberty  of  worship  the  new  faith  or  church  encoun- 
ters great  resistance,  and  this  continues  until  opinion  is  pre- 
pared to  yield  toleration  at  least  to  the  new  opinions  and  the 
new  worship.  Generally  the  resistance  will  be  made,  in  coun- 
tries professing  some  form  of  Christian  faith,  by  laws  affecting 
the  status  of  individuals  according  to  their  outward  worship, 
as  by  test  acts  and  subscriptions  to  religious  formulas.  When 
opinion  so  far  yields  that  a  real  religious  freedom  is  permitted, 
the  state  will  have  brought  into  the  spirit  of  allegiance  many 
who  were  wavering  or  disaffected  before,  and  the  sense  of 
justice  will  no  longer  be  violated  by  disqualifications  of  citi- 
zens on  most  unreasonable  grounds.  Or  it  may  happen  that 
a  state  passes  over  from  one  form  of  church  order  to  another, 
holding  all  the  while  that  an  establishment  of  some  sort  is 
necessary.  In  this  state  of  things  the  adherents  of  the  old 
church,  allying  themselves  with  external  enemies,  may  bring 
a  state  into  extreme  weakness  or  peril.  When  the  equality 
of  all  religions  before  the  law  is  admitted,  there  is  then  no 
room  for  change  ;  but  religion,  while  it  may  have  all  its  old 
sway  over  individuals,  is  a  cause  aside  from  national  affairs  in 
this  sense,  that  it  may  leaven  everything  with  its  principles 
and  ways  of  judgment,  and  yet  act  only  through  personal 
life  and  feeling. 

The  decay  of  religious  faith  is  a  cause  that  deeply  affects 
national  life.  If  it  disappeared  entirely,  so  that  there  was  no 
recognition  of  providence  or  of  the  divine  existence,  we 
believe  that  the  great  bulwarks  of  civil  morality  and  order 
would  be  destroyed.  This  is  in  fact  true  even  of  the  decay 
of  any  heathen  religion  with  nothing  to  supply  its  place. 
But,  firmly  believing  that  the  principles  of  Christianity  re- 
ceived into  the  soul  cannot  fail  to  bring  it  into  harmony  and 


POLITICAL  CHANGES. 


573 


order,  and  that  an  opposite  set  of  principles  must  bring  into 
the  soul  disharmony,  unrest,  and  commotion,  we  cannot  avoid 
applying  the  rule  which  is  true  of  the  individual  to  the  state  : 
if  no  state  can  thrive  by  the  play  of  the  selfish  interests  and 
the  kindly  feelings  of  society  only,  then  the  undermining  of 
faith  must  be  the  undermining  of  the  state  itself.  But  the 
decay  of  faith  cannot  be  stayed  by  argument  or  by  forms  of 
religion  ;  it  must  meet  and  grapple  with  convictions  more 
powerful  than  those  negations  on  which  it  rests — society  it- 
self must  be  revivified. 

There  is  yet  another  prop  afforded  by  religion  to  the  state.  ' 
It  is  the  feeling  of  unity  which  we  find  in  the  ancient  city- 
states,  where  protecting  divinities  bound  the  community 
together  as  faith  in  family  gods  cemented  family  unions, 
which  in  larger  societies,  as  under  Iranism,  was  the  strongest 
fortress  of  national  feeling  ;  which  was  the  very  life  of  the 
Jews,  so  that,  to  the  pious  Jew,  Jehovah  and  the  common- 
wealth were  inseparable  ;  and  which  in  many  Christian  lands 
has  shown  its  great  force  in  resisting  enemies  belonging  to 
another  religion.  The  entire  separation  of  state  and  church 
does  not  destroy  this  feeling  of  unity  altogether,  for  there 
are  many  who,  although  differing  among  themselves,  look  on 
Christian  institutions  in  the  general,  as  the  groundwork  of  a 
true  and  the  only  true  civilization  ;  and  there  are  many  more 
who  within  their  own  pale  cling  to  this  uniting  principle, 
conmion  to  them  and  a  multitude  of  others,  as  being  vitally 
dependent  for  its  prosperity  on  civil  order  and  its  chief 
support.  The  decay  of  faith  causes  all  these  props  to  tumble 
down.^ 

But  far  more  obvious,  as  a  source  of  change,  are  the  accu- 
mulations of  capital  by  the  use  of  industry  in  a  country 
where  personal  property  had  before  been  small  in  amount. 
In  almost  all  nations  w'herc  labor  is  but  little  divided,  the 
land  will  be  owned  for  the  most  part  in  large  parcels  by  a 
few  persons,  who  form  the  upper  class,  the  milifary  or  eques- 
trian order,  the  legislators  of  the  country.  The  land  is  culti- 
vated by  sla\  es  or  serfs,  or  by  poor  freemen.    The  wants  of 


574 


POLITICAL  SCIENXE. 


the  great  landholders  are  met  by  manufactures  carried  on 
within  their  own  domains  by  their  retainers,  or  by  imports 
•which  a  small  trade  offers  in  exchange  for  various  raw  pro- 
ducts of  the  soil.  This  kind  of  life  might  almost  get  the 
solidity  of  a  system  of  castes,  if  an  innovation  could  not 
begin  from  the  growth  of  towns,  for  it  may  be  laid  down  as 
a  rule  that  no  durable  political  change  in  a  country  yet  unde- 
veloped can  begin  from  a  landless  rural  population.*  Least  of 
all  could  the  peasants  initiate  a  successful  change  in  a  feudal 
or  semifeudal  society,  where  a  country  itself  had  become 
disintegrated,  and  nearly  all  the  central  authority  had  passed 
over  into  the  hands  of  the  great  landholders  or  barons.  But 
what  the  laborers  on  the  soil  cannot  do,  in  that  they  are 
incapable  of  combination  and  are  destitute  at  once  of  skill- 
ful leaders  and  military  experience,  that  the  towns  can  do  at 
some  favorable  crisis  and  epoch  of  their  growth,  unless  the 
military  class  perceive  that  there  must  be  in  the  end  an  essen- 
tial opposition  between  their  political  interests  and  those  of 
the  dwellers  in  cities.  It  is  for  their  direct  advantage  to  have 
taxable  subjects  on  their  own  soil,  to  find  that  a  settlement 
of  merchants  and  manufactures  increases  the  worth  of  their 
lands  and  products,  and  that  they  are  placed  within  easier  reach 
of  the  lu.xuriesof  remote  lands.  They  are  content,  therefore, 
to  confer  such  privileges  of  local  self-government  and  police, 
under  an  officer  of  their  own,  as  will  protect  their  rights  and 
offer  inducements  to  new-comers.  From  these  beginnings 
towns  may  push  forward  into  still  greater  independence  ;  they 
may  form  alliances  with  one  another  and  with  the  suzerain  ; 
may,  for  help  afforded  to  their  immediate  sovereign,  buy  him 
out  in  regard  to  all  important  political  rights  ;  until  they  are 
felt  to  be  a  body  in  the  state  which  cannot  be  despised,  by 
whose  aid  the  suzerain  can  subdue  the  nobles,  through  the 

*I  say  "durable"  witli  the  jacquerie  and  peasant's  revolt  in 
mind,  which  Ijroke  out  before  their  titne,  owing  to  the  action  of  pecu- 
liar and  even  temporary  causes,  l)ut  died  down  (luicklv.  The  peas- 
ants' war  in  Germany,  caused,  it  would  seem,  by  wrongs  of  the  fif- 
teenth century  and  a  new  awakening  of  thought,  ended  unfortunately. 


POLITICAL  CHANGES. 


575 


money  and  armed  men  of  which  he  can  gain  the  position  of  a 
real  monarch  over  the  barons  who  had  long  before  usurped 
nearly  all  the  royal  rights  of  administration  and  jurisdiction. 

It  will  be  seen  at  once  that  the  foregoing  is  a  general  out- 
line of  what  took  place  in  Europe  during  the  mediaeval  times. 
The  barons  and  great  ecclesiastics,  by  privileges  granted  to 
infant  towns,  laid  the  foundation  for  a  new  force  in  society, 
and  could  not  but  do  this,  as  it  seemed  to  promise  well  for 
themselves.  Thus  political  change  by  slow  degrees  inevitably 
crept  in.  The  change,  of  course,  would  be  resisted;  but  the 
towns,  created  by  the  acts  of  great  proprietors,  were  well 
able  to  defend  themselves,  and  for  the  better  defence  of  their 
charters  combined  against  the  lord  of  the  soil  (the  king,  bishop, 
baron),  or  against  the  inferior  nobility — some  of  whom,  com- 
pelled by  force,  some  of  their  own  will,  entered  into  the 
town  organization,  while  holding  lands  without,  and  became 
a  part  of  the  body  politic.  The  noblesse  or  patricians  thus 
added  strength  to  the  towns,  especially  at  first  ;  while  after- 
wards, it  might  happen,  they  turned  out  to  be  most  uneasy 
members  of  civic  communities,  forming  factions  among  them- 
selves or  arrayed  against  the  untitled  wealthy  class  of  mer- 
chants and  great  manufacturers.  (Comp.       171,  187.) 

These  changes  were  all  derived  from  the  compactness  of 
town  life,  from  the  acquisition  of  wealth,  from  the  sense  of 
power  caused  by  the  possession  of  it,  and  by  the  opinion  of 
what  was  right  and  just;  which,  as  the  towns  grew  and 
spread,  became  almost  a  national  opinion — one  of  the  indica- 
tions that  the  country  was  feeling  its  way  towards  unity,  and 
that  a  wider  association  lay  in  the  future.  The  opinion  with 
which  the  towns  acted  on  the  kings  and  lords,  was  owing, 
not  only  to  the  importance  which  the  towns  themselves  ac- 
quired in  a  material  respect,  but  also  to  the  gathering  within 
their  walls  of  men  cultivated  in  legal  science,  of  such  as  had 
travelled  to  remote  lands  and  took  wide  views  of  things,  of 
professors  in  universities  and  trained  physicians,  of  men  of 
noble  extraction  living  on  the  produce  of  their  lands,  but  fond 
of  the  social  enjoyments  of  city  life.     Here,  too,  luxuries  and 


5/6 


POLITICAL  SCIENCE. 


refinements  grew  up,  which  made  the  country  nobles  feel  an 
inferiority  to  the  citizen  in  spite  of  their  pride.*  And  here, 
finally,  the  various  kinds  of  literary  men  gathered  ;  books 
were  copied,  lectures  beyond  the  demands  of  mere  profes- 
sional life  were  given,  and  a  learned  class  arose,  forming  a 
sort  of  brotherhood  through  a  country,  or  even  over  Europe. 
The  changes  from  these  sources  might  be  slow,  but  the  politi- 
cal condition  could  not  be  what  it  was  before,  and  the  third 
estate  grew  in  consciousness  of  strength — at  first  within  the 
towns,  then  as  a  general  body,  until  from  the  towns  came, 
first,  a  predominant  opinion  and  a  feeling  of  nationality,  then 
the  demand  for  alteration  in  government.  In  some  countries 
they  did  not  in  the  end  gain  very  much  ;  and  there  was  no 
great  sympathy  in  them  for  the  peasantry,  which  long  re- 
mained a  dead  and  blind  mass,  unless  other  forces,  those  of 
religion  and  education,  came  in  to  raise  them  from  their  igno- 
rance and  serfdom.  The  greatest  of  all  the  political  evils, 
that  the  peasant  did  not  own  the  land  which  he  tilled,  re- 
mained a  problem  for  the  future  to  solve. 

274. 
Revolutions. 

The  political  changes  which  we  have  just  considered  have 
Kinds  of  revoiu-  bcen  slow,  often  unperceived,  and  incapable  of 
being  estimated,  save  by  history  looking  far 
backward.  There  is  another  kind  of  changes  arising,  it  may 
be,  out  of  one  or  more  of  the  same  causes,  aided  by  some 
great  grievance  of  the  present,  which  have  been  common 
enough  under  free  institutions,  and  wherever  a  nation  has 
reached  an  advanced  point  of  activity  in  thinking  and  judging 
of  its  own  affairs.  These  differ  from  the  oth^r  changes  in 
being  explosive  and  in  demanding  immediate  political  altera- 
tions or  reforms,  by  force  if  necessary.  They  differ  among 
themselves  in  this,  that  there  may  be  no  concert,  no  conspir- 
acy ;  but  there  must  be  a  common  feeling,  which,  irritated  in 

*  Comp.  Villani,  1st.  Fior.,  b.  vii.,  ch.  88,  "on  a  noble  company 
which  was  gotten  up  in  Florence  in  1283." 


POLITICAL  CIIAXGES. 


577 


one  place,  offers  resistance  and  instantly  awakens  sympa- 
thy and  calls  for  aid  in  many  others.  Sometimes  these  sud- 
den movements  spread  with  such  electric  energy  that  they 
seem  like  material  phenomena.  The  Sicilian  vespers  aff'ord 
a  fine  illustration  of  this.  The  cause  of  insurrection  lay  in 
the  atrocious  insolence  and  oppression  of  the  southern  Ital- 
ians by  the  French  under  Charles  of  Anjou.  Already,  by 
the  efforts  of  one  man,  John  of  Procida,  the  island  had  been 
prepared  for  a  revolt.  But  the  immediate  cause  lay  in  this, 
that  the  F"rench  officials  made  use  of  the  law  against  wearing 
concealed  weapons,  to  examine  ladies  on  their  way  towards 
a  church  outside  of  Palermo,  in  a  most  revolting  manner. 
The  French  were  cut  down  by  the  Sicilian  men  who  accom- 
panied the  dames.  Instantly  the  cry  "  Down  with  the 
French  "  flew  to  the  city  and  over  the  island  ;  everywhere 
the  French  were  attacked  ;  the  garrison  of  IMessina  was  mur- 
dered by  the  people.  It  is  not  probable  that  the  conspiracy 
had  anything  whatever  to  do  with  this.  The  conspiracy  of 
John  of  Procida,  and  the  scene  at  the  vespers  of  the  Easter 
day,  point  to  one  and  the  same  cause.  In  fact,  the  outbreak 
at  Palermo  might  have  frustrated  the  revolt  itself.  Aristotle 
remarks  (viii.,  or  v.,  3,  §  i),  that  "  civil  strifes  arise  not  con- 
ccr/n;i^sma\\  things,  i>nl  out  i?/ small  things.  But  men  strive 
about  great  things."  And  he  gives  an  instance  from  the 
history  of  Syracuse,  which  is  parallel  in  some  respects  with 
the  Sicilian  vespers. 

Aristotle's  fifth  book  of  politics  (or,  as  with  many  I  shall 
Aristotle  on  rcvo-  ^all  it,  the  eighth)  is  wholly  taken  up  with  what 
may  be  called  revolutions.  The  Greek  word  is 
stasis,  a  wider  term  than  revolution,  somewhat  answering  to 
the  Latin  seditio  {i.e.,  a  going  apart,  or  in  a  diffbrent  direc- 
tion— a  secession).*  We  shall  use  stasis,  in  referring  to  Aris- 
totle's opinions,  as  equivalent  to  our  i'cvolntion. 

*  In  Creek,  also,  the  word  metastasis,  a  strife  involving;  change,  is 
used,  hut  is  not  very  connnon.     I'.y  this  word  is  donotcd  tlio  ovi-r- 
thi  ovv  of  the  democracy  (the  SjJ^xou  Ka.Tix\viTi%^  at  Athens,  \\\  404,  in 
an  oration  of  I.ysias.    (c.  Niconi.,  §  10.; 
VOL.  II.— 37 


POLITICAL  SCIENCE. 


Aristotle  proposes  in  the  eighth  book  to  consider  the  vari- 
ous causes  of  political  changes,  the  peculiar  sources  of  the 
destruction  of  each  particular  polity,  the  course  which  the 
changes  take  in  each  of  them,  and  the  ways  of  saving  each 
of  them  from  the  influence  of  these  injurious  causes.  The 
general  cause  of  revolutions  is  the  same  that  gives  rise  to  a 
difference  in  forms  of  polity  ;  it  is  a  general  agreement  in 
what  is  just  and  equal,  with  a  difference  in  carrying  such  views 
into  practice.  Thus,  democracy  arises  from  thinking  that 
those  who  are  equal  in  some  respects  should  be  absolutely 
equal ;  and  oligarchy,  from  thinking  that  inequality,  which 
exists  as  it  respects  property,  should  be  extended  so  as  to 
include  inequality  in  civil  status.  Hence,  men  in  the  former, 
as  being  equal,  claim  to  have  an  equal  share  of  everything, 
and  in  the  latter,  as  being  unequal,  claim  to  have  more  than 
the  others.  For  the  more  is  inequality.  Thus,  they  have 
some  reason  in  their  claims  but  are  absolutely  in  error. 
With  the  best  reason  would  those  engage  in  civil  strife  who 
are  persons  of  the  greatest  worth,  and  yet  they  do  this  less 
than  any  others  ;  for  it  is  especially  reasonable  that  these, 
and  these  only,  should  be  absolutely  unequal  to  others.  (Ch. 
i.,sHi-3-) 

The  changes  of  polity  arise  in  two  ways  :  sometimes  the 
strife  turns  on  the  point  whether  the  form  shall  be  changed  ; 
sometimes  the  parties  would  prefer  the  existing  polity,  but 
wish  to  administer  it  themselves,  or  to  make  it  more  intense 
or  less  so,  as  for  instance,  to  lower  the  tone  of  an  oligarchy 
or  raise  it,  to  make  a  democracy  more  or  less  democratical. 
Again,  the  strife  aims  at  changing  a  particular  provision  of 
the  polity,  as,  for  instance,  at  abolishing  or  establishing  a  cer- 
tain magisti'acy  ;  so  some  say  that  in  Lacedjemon  Lysander 
aimed  at  destroying  the  royal  power,  and  King  Pausanias  at 
destroying  the  ephorate.  (§§4.  5-)  Democracy  is  safer  and 
more  free  from  civil  strife  than  oligarchy,  for  the  latter  is 
liable  both  to  strife  between  the  members  of  the  oligarchy 
and  between  them  and  the  dcmiis.  But  in  democracies  the 
only  strife  is  with  the  oligarchy  ;  between  the  parts  of  the 


POLITICAL  CHANGES. 


579 


demus  themselves  there  is  Httle  of  strife  worthy  to  be  men- 
tioned.   (§  9.) 

The  causes  of  strife  and  poHtical  changes  are  reducible  to 
three,  according  to  Aristotle,  (u.  s.,  ch.  2.)  These  are  the 
feelings  of  those  who  engage  in  strife,  their  motives  in  so 
doing,  and  the  determining  causes  or  the  origin  of  the  po- 
litical disturbances.  These  determining  causes  are  seven  : 
ambition,  desire  of  riches  (both  awakening  the  desire  of 
becoming  equal  to  others),  insult,  fear,  superiority,  contempt, 
the  disproportionate  increase  of  the  parties  in  the  community. 
Concerning  this  latter  cause,  he  remarks  that  sometimes  the 
disproportion  referred  to  grows  up  imperceptibly,  as  in 
democracies  the  poorer  classes  may  increase  unawares. 
Sometimes  a  single  disaster  may  bring  about  the  same  result, 
as  at  Tarentum,  when  the  people  were  defeated  and  many 
of  the  notables  were  slain  a  little  after  the  Persian  invasions 
of  Greece,  the  republic  was  changed  into  a  democracy. 
This  may  happen  in  democracies,  but  not  so  frequently  as 
under  other  polities. 

The  occasions  of  political  overturnings  are  often  trifling  in 
themselves.  This  remark,  which  has  been  cited  already, 
Aristotle  fortifies  by  a  number  of  historical  illustrations. 
Such  occasions  are  seized  on  the  more  readily,  when  the  par- 
ties or  factions  are  nearly  equal  and  there  is  no  considerable 
party  lying  between  the  two.  When,  however,  one  faction 
is  decidedly  superior  to  the  other,  the  feeble  one  will  not  in- 
cur the  risk  of  open  strife.  "  For  this  reason  those  who  ex- 
cel in  personal  worth  scarcely  ever  stir  up  party  strife,  for 
they  are  found  to  be  few  against  many."  (ch.  3,  §  7.)  As  if 
they  would  without  scruple  seize  on  the  power  of  the  state  if 
they  felt  themselves  to  be  stronger  than  the  other  citizens  ! 

The  changes  in  democracies  are  chiefly  due  to  the  wanton 
Changes  in  dc-  conduct  of  dcmagogucs,  who  by  their  false 
mocraccs.  accusations  of  wealthy  individuals  force  them  to 

conspire  together  under  the  influence  of  a  common  fear,  and, 
again,  in  public  matters  lead  the  people  on  to  rise  against 
state  order.    Thus,  in  C\)s,  the  democracy  was  overthrown  by 


POLITICAL  SCIENCE. 


a  coalition  of  the  upper  class  against  mischievous  demagogues. 
In  Rhodes  the  demagogues  procured  that  the  revenues  should' 
be  distributed  as  pay  to  the  people  (?),  and  stopped  paying 
the  trierarchs  what  was  due  to  them  [for  advances  to  the 
state  on  account  of  their  galleys].  To  escape  oppressive 
suits  the  trierarchs  conspired  and  overthrew  the  popular  gov- 
ernment. In  Heracleia  [Pontica],  soon  after  the  settlement 
there,  the  democracy  was  abolished,  owing  to  the  violence  of 
the  demagogues  who  banished  the  notables  ;  and  they,  col- 
lecting together,  returned  to  put  down  the  popular  govern- 
ment. The  same  happened  at  Megara,  whence  this  colony 
at  Heracleia  went  forth,  owing  to  the  banishment  of  wealthy 
citizens  and  confiscation  of  their  property  by  the  demagogues. 
The  oppressed  wealthy  class  succeeded  in  establishing  an 
oligarchy.  In  almost  all  similar  revolutions  in  democracies 
the  course  of  events  is  much  the  same.  Sometimes  the 
demagogues,  to  please  the  people,  force  the  upper  class  into 
conspiracy,  by  oppressing  them  ;  then  either  they  divide  up 
their  estates  or  consume  their  revenues  in  public  services,  or 
they  bring  charges  against  them  in  order  to  confiscate  their 
property.  In  the  old  times,  when  the  same  man  was  dema- 
gogue and  general,  the  polities  assumed  the  tyrannical  form, 
almost  all  the  ancient  tyrants  having  been  demagogues  at 
first.  The  reason  why  this  happened  then,  but  does  not  hap- 
pen now,  says  Aristotle,  is  that  then  skill  in  war  brought 
the  demagogue  forward  ;  now  it  is  skill  in  oratory  that  does 
this.  These  popular  leaders  of  to-day,  on  account  of  their 
ignorance  of  military  affairs,  seldom  use  violence  to  secure 
their  ends.  Formerly,  also,  tyrannies  arose  more  than  now 
from  the  greatness  of  the  power  entrusted  to  a  single  person  ; 
or  from  the  fact  that  the  cities  were  small  and  the  citizens  to 
a  great  extent  lived  on  their  lands,  which  afforded  facilities  to 
the  popular  leaders,  where  they  had  skill  in  military  afifairs, 
to  get  control  over  a  population  busy  in  their  own  affairs  out- 
side of  the  walls.  Again,  there  arc  changes  from  a  democra- 
cy handed  down  from  ancestors  into  one  of  a  new-fangled 
kind.    "  For  where  the  public  officers  are  chosen  without 


POLITICAL  CHANGES. 


581 


any  property  qualification,  and  the  people  chooses  ;  those  \vho 
are  eager  for  office  by  their  demagogical  arts  bring  things  to 
such  a  pass  that  the  people  become  lords  even  over  the  laws. 
It  would  cure,  or  at  least  abate  this  evil,  if  the  tribes  should 
choose  each  a  part  of  the  magistrates  instead  of  the  whole 
demtcs  choosing  them  by  a  collective  vote."  (ch.  4.) 

After  detailing  the  causes  of  political  changes  in  oligar- 
chies (ch.  5)  and  aristocracies  (ch.  6),  Aristotle  passes  on  to 
consider  the  means  which  lie  within  the  reach  of  these  poli- 
ties for  their  own  conservation  (ch.  7).  He  then  examines 
the  causes  of  political  change  in  monarchies  and  tyrannies 
(ch.  8j,  as  well  as  their  power  of  self-preservation  (ch.  9). 
Pie  closes  this  important  book  of  his  politics  by  examining 
Plato's  theory  of  revolutions,  and  criticises  especially  the 
order  of  succession  which  is  assigned  to  different  polities  in 
the  eighth  book  of  the  republic.  We  have  space  only  for  a 
brief  review  of  the  chapter  touching  the  ability  of  republics 
to  resist  revolutionary  changes. 

If  we  know  how  polities  are  corrupted  or  destroyed,  we 
Aristotle  on  keep-  ^^^^^  thc  mcaus  by  which  they  may  be  pre- 
ing  off  revolutions,  ggrved.  In  all  well-constituted  polities  the  high- 
est care  is  needed  that  no  illegality  be  allowed,  and  especially 
in  a  democracy.  Deviation  from  law  undermines  a  state 
imperceptibly,  as  small  expenses  often  incurred  waste  prop- 
erties. The  changes  escape  remark  because  they  do  not  take 
place  all  at  once,  and  the  understanding  is  cheated  by  them. 
Another  thing  to  be  avoided  is  the  use  of  those  political 
sophisms  which  are  employed  for  the  purpose  of  imposing  on 
the  people.  (Pol.,  viii.,  or  5,  7^%%  i,  2.)  Many  aristocracies 
and  some  oligarchies  owe  their  permanence  not  to  the  safety 
of  those  polities  themselves,  but  to  the  wisdom  of  the  magis- 
trates in  their  treatment  of  both  those  who  have  a  part  in 
the  government  and  those  who  have  no  part.  Again,  a 
short  term  of  office  is  an  aid  against  factions,  as  thus  a 
greater  number  can  enjoy  power.  Aristotle  mentions  the 
term  of  six  months,  common  afterwards  in  the  republics  of 
mcdia;val  Italy.    Another  way  of  preserving  politics  from 


582 


POLITICAL  SCIENCE. 


ruin  is  by  bringing  the  danger  of  it  before  the  eyes  of  the 
well-afifected  citizens.  Sometimes  even  fears  ought  to  be 
awakened,  in  order  that  men  may  be  vigilant  and  not  relax 
their  guard  over  the  constitution,  like  watchmen  in  the 
night.  The  quarrels,  also,  of  the  better  classes  must  be 
looked  into,  and  others  who  have  stood  aside  from  strife 
be  prevented  from  taking  a  part.    (u.  s.,  1-5.) 

Sometimes  a  political  change  from  an  oligarchy  or  a  repub- 
lic to  democracy  arises  because  the  valuations  of  property,  on 
which  political  capacity  is  founded,  remain  the  same,  while 
money  has  become  more  plentiful.  To  prevent  a  change  due 
to  this  cause,  the  valuation  of  property  ought  to  be  revised 
within  short  intervals,  so  that  the  lowest  valuation  according 
to  which  political  privilege  is  given  may  vary  with  the  value 
of  money  and  the  increase  or  diminution  of  individual  posses- 
sions. Otherwise,  where  the  lowest  valuation  cuts  off  a  great 
number,  an  oligarchy  will  be  likely  to  take  the  place  of  a 
republic,  and  a  dynasty  the  place  of  an  oligarchy  ;  and  in  the 
reverse  case  a  democracy  will  succeed  to  a  republic,  and  a 
republic  or  a  democracy  to  an  oligarchy,    (u.  s. ,      6,  7.) 

In  all  these  forms  of  polity,  the  attempt  should  be  to  give 
trifling  but  lasting  honors  or  functions,  rather  than  short  and 
important  ones,  for  power  corrupts,  and  all  are  not  able  to 
bear  prosperity.  Especially  should  the  aim  be  by  means  of 
the  law. to  prevent  any  one  in  the  state  from  becoming  very 
prominent  in  wealth  or  number  of  friends  ;  or,  if  this  cannot 
be,  to  take  care  that  they  be  relegated  into  foreign  parts.* 
Those  who  live  in  a  way  inconsistently  with  the  polity  ought 
to  be  under  the  police  inspection  of  a  magistracy  having  this 
for  an  object,  since  it  is  owing  to  the  habits  of  individuals  that 
innovations  creep  into  a  community.  The  advancement  of 
a  state  in  prosperity  ought  to  be  ever  kept  in  view,  and  the 
men  of  different  conditions,  as  the  rich  and  poor,  the  well- 

*  8.)  For  the  words,  aToSrj^ijriKas  7roter(r.9ai  tus  Trapao-Tacreis  avroji', 
which  are  variously  explained — generally  by  being  banished,  or  being 
sent  either  into  banishment  or  on  legations — see  the  notes  in  Schnei- 
der's ed.,  ad.  loc.,  and  comp.  Stallb.  on  Tlat,  de  leg.,  ix.  855,  c. 


POLITICAL  CHANGES. 


born  and  the  mean,  should  be  together  entrusted  with  the 
affairs  and  offices  of  the  poHty  ;  and  an  intermediate  class 
between  these  extremes  should  be  increased  as  much  as  pos- 
sible,   (to  §  8.) 

A  most  important  point  in  every  polity  is  to  make  such 
provision,  by  law  and  in  other  ways,  that  public  office  shall 
not  be  a  source  of  gain.  Especially  is  this  to  be  kept  in  view 
in  oligarchies,  for  the  mass  of  men  are  not  so  much  irritated 
by  being  shut  out  of  office, — nay,  rather  they  are  glad  when 
they  are  allowed  to  pursue  their  private  affairs  quietly — 
as  they  are,  when  they  think  that  the  rulers  are  stealing  the 
public  money.  Then  it  is  that  they  are  grieved,  both  because 
they  have  no  share  in  the  offices  and  have  none  of  the  gains. 
This  evil  will  be  prevented  when  the  public  posts  are  not 
lucrative,  for  then  the  poor  will  not  seek  for  them,  and  the 
upper  class  will  be  unable  to  misuse  them  for  purposes  of  gain, 
and  yet  be  ready  to  fill  them  as  places  of  honor.  And  thus 
the  poor  will  become  affluent,  because  they  can  give  their 
attention  to  their  own  callings,  and  the  upper  class  will  not 
be  ruled  by  their  inferiors.  In  order  to  prevent  the  stealing 
of  public  money,  let  the  handing  over  of  the  funds  entrusted 
to  public  officers  take  place  in  the  presence  of  all  the  peo- 
ple ;  let  copies  of  the  accounts  be  lodged  in  the  archives  of 
the  tribes  and  other  subdivisions  of  the  state  ;  and  let  appro- 
priate honors  be  bestowed  on  those  who  have  managed  pub- 
lic affairs  without  making  office  a  source  of  gain,    (to  '§■11.) 

In  democracies  the  affluent  ought  not  to  be  put  to  great 
expense,  nor  even  to  be  allowed  to  use  their  incomes  in  ex- 
pensive but  useless  public  services,  such  as  taking  the  lead  in 
choragic  shows,  torch-races,  and  the  like.  In  an  oligarchy 
much  care  should  be  taken  of  the  poorer  citizens,  and  offi- 
ces be  given  to  them  from  which  they  can  receive  a  salary  ; 
and  should  any  of  the  wealthy  treat  them  with  contumely  or 
outrage,  the  penalty  ought  to  be  greater  than  if  they  sliould 
so  treat  their  own  class.  In  this  polity,  again,  inheritances 
ought  not  to  go  by  donation,  but  only  by  birth,  and  the  same 
person  ought  not  to  be  allowed  to  receive  more  than  one  in- 


584 


POLITICAL  SCIENCE. 


heritance,  for  in  this  way  estates  will  be  more  nearly  equal, 
and  more  of  the  poor  will  become  affluent,    (to  §  13.) 

After  recommending  that,  in  an  oligarchy  and  a  democracy 
both,  it  is  best  to  give  equality  or  even  pre-eminence  in  minor 
political  employments  to  a  class  which  is  not  predominant  in 
the  state — to  the  rich  in  democracies,  to  the  poor  in  oligar- 
chies 13),  Aristotle  remarks  that  all  things  in  the  laws  of  a 
polity  conforming  to  its  nature  tend  to  preserve  it.  Above  all, 
ouglit  the  portion  of  the  community  that  wishes  to  uphold  the 
polity  be  made  stronger  than  that  which  would  prefer  its 
overthrow.  Especially  should  the  middle  between  extremes 
be  sought  for  and  secured — that  which  governments  deviating 
from  their  true  type  neglect — for  many  seemingly  democratic 
institutions  destroy  democracies,  and  many  of  the  oligarchic 
kind  destroy  oligarchies.  Some  persons,  thinking  that  the 
excellence  of  a  polity  is  one  and  simple,  push  things  to  an 
extreme.  (§  17.)  But  both  oligarchy  and  democracy, 
although  at  a  remove  from  the  best  form  of  government,  can 
do  their  work  tolerably  well  as  they  are  ;  while,  if  either  of 
them  becomes  more  intense  and  true  to  its  own  type,  the  pol- 
ity will,  in  the  first  place,  become  worse,  and  at  the  end 
will  become  no  polity  at  all.  The  lawgiver,  therefore,  and 
the  political  man  ought  to  understand  well  what  democratic 
institutions  save  democracies,  and  what  oligarchic  ones  save 
oligarchies.  Now,  since  neither  of  them  can  exist  and  flour- 
ish without  the  wealthy  and  without  a  demus,  and  since  by 
an  equality  in  property  a  polity  must  be  changed,  do  not  they 
who  destroy  cither  part  of  the  citizens  by  laws  favoring  the 
superiority  of  the  other  (?)  destroy  the  polity  itself  ?  Faults  are 
committed  under  both  kinds  of  governments.  In  democracies 
the  demagogues  err  when  they  make  the  will  of  tnc  common 
people  superior  to  the  law,  since,  by  attacking  the  wealthy, 
they  divide  the  state  in  twain.  Far  from  this,  they  should  al- 
ways seem  to  take  the  part  of  the  wealthy,  and  so  should  the 
heads  of  an  oligarchy  seem  to  advocate  the  cause  of  the  poor. 
And  in  the  latter  of  these  constitutions  the  oaths  that  they 
ought  to  take  should  be  opposite  in  their  import  to  those 


POLITICAL  CHAXGES. 


which  they  take  now  ;  for  now,  in  some  city-states,  they  take 
an  oath  in  words  such  as  these  :  "I  swear  that  I  will  bear  a 
hostile  mind  towards  the  demus,"  whereas  they  ought  to  act 
in  just  the  contrary  character,  and  swear,  "  I  will  not  wrong 
the  demus."    (to  §  20.) 

The  most  important  rule  for  conserving  a  constitution,  ac- 
cording to  Aristotle,  is  that  which,  at  his  day,  was  entirely 
neglected — to  conform  the  education  to  the  character  of  the 
polity.  For  there  is  no  value  in  the  most  useful  laws, 
agreed  upon  by  all  who  live  under  a  polity,  unless  manners 
and  training  are  in  conformity  with  it,  looking  towards  the 
popular  side  if  the  constitution  is  popular,  and  towards  the 
oligarchic  side  if  it  is  an  oligarchy.  For  the  want  of  self- 
restraint  belonging  to  an  individual  belongs  to  the  state.  To 
be  educated,  however,  in  conformity  with  a  polity,  is  not  to 
learn  how  to  do  that  which  would  please  the  oligarchy  or  the 
democracy,  but  that  by  means  of  which  one  can  live  under  an 
oligarchic  or  a  democratic  constitution.  But,  as  things  are 
now,  the  sons  of  rulers  in  an  oligarchy  live  in  luxury,  while 
those  of  the  poor  become  inured  to  bodily  exercise  and  toil, 
which  makes  them  more  willing  and  able  to  engage  in  new 
political  schemes.  And  in  democracies,  even  the  most  demo- 
cratical,  the  interests  of  the  state  arc  not  observed,  on  account 
of  a  prevailing  false  conception  of  liberty.  Into  this  concep- 
tion two  elements  enter — that  the  majority  should  have  the 
power,  and  that  there  should  be  liberty.  Justice  is  thought 
to  consist  in  equality,  and  equality  means  that  whatever  seems 
best  to  the  majority  that  is  to  have  force  of  law,  while  freedom 
and  equality  are  made  to  consist  in  every  individual's  doing 
as  he  will.  But  this  is  evil.  For  it  ought  not  to  be  thought 
to  be  a  slavery  to  live  in  conformity  with  the  institutions,  but 
a  means  of  safety.  20-22.) 

In  the  very  important  book  of  his  Politics  of  which  we  have 
given  a  partial  sketch,  Aristotle  nowhere  speaks  of  the  recon- 
struction of  a  government  already  overturned  by  revolution, 
nor  among  his  precepts  for  sustaining  a  government  against 
revolutionary  forces  docs  he  go  much  beyond  rules  of  policy. 


586 


POLITICAL  SCIENCE. 


In  fact,  from  the  nature  of  the  relation  between  the  individual 
and  the  state,  as  it  was  apprehended  by  the  Greeks,  it  was 
not  possible  to  go  much  farther.  And  yet  he  has  investigated 
this  department  of  politics  with  a  clear  eye,  and  no  one  since 
his  time  seems  to  have  added  much  to  what  he  has  here 
brought  together,  except  so  far  as  the  history  of  large  states 
and  the  experience  of  principles  on  a  large  scale  has  enlight- 
ened them.  A  full  discussion  of  revolutions,  especially  of 
modern  revolutions,  is  a  desideratum  yet  to  be  supplied.  We 
intend  to  look  at  one  or  two  aspects  of  the  subject  only. 

We  have  elsewhere  remarked  that  the  word  revolution  is 
Comprehensiveness  SO  comprchensi vc  as  to  embrace  various  move- 

of  the  word  revolu- 
tion, ments  of  a  sudden  kind,  aiming  at  political 

changes,  and  including  as  well  changes  in  one  or  two  respects, 
as  those  which  contemplate  the  complete  political  transforma- 
tion of  society.  Thus,  the  movement  that  ends  in  a  change 
of  dynasty,  or  in  removing  the  existing  sovereign  and  putting 
one  of  his  near  kindred  in  his  place,  is  equally  called  a  revo- 
lution with  one  which  obliterates  differences  of  ranks,  dises- 
tablishes a  church,  abolishes  royalty,  and  alters  the  tenure  of 
land  together  with  a  large  part  of  the  law  that  has  come  down 
from  the  past.  There  is  but  one  event  generally  known  as  a 
revolution  in  English  history,  and  this  had  far  less  of  a  revo- 
lutionary character  than  others  which  have  not  obtained  the 
title.  It  consisted  in  the  bloodless  flight  of  a  king  who  had 
endeavored  to  subvert  the  laws  and  institutions  ;  in  a  conven- 
tion-parliament's declaration  that  the  throne  was  vacant,  and 
their  invitation  to  his  son-in-law  and  his  daughter  to  reign  in 
his  stead.  He  packed  up  his  luggage  and  went  across  the 
channel.  That  was  the  visible  event,  the  body  of  this  revo- 
lution, which  had  indeed  a  soul  much  larger  than  its  body. 
Now,  why  was  this  all  ?  It  was  owing  to  the  great  transac- 
tions of  nearly  fifty  years  before,  which  were  not  called  a 
revolution,  and  yet  for  a  time  and  before  the  right  time 
made  a  general  overturning  in  the  whole  jjolitical  fabric.  I  he 
recollection  of  those  events  and  of  what  bcfcl  the  sovereign 
was  a  power  that  acted  on  the  mind  of  the  king  and  court  ♦^o 


POLITICAL  CHANGES. 


prevent  a  struggle,  and  thus  the  wars  of  the  parUament  with 
the  king  prevented  the  recurrence  of  the  same  calamities  after- 
wards. Nor  are  the  previous  usurpations  and  depositions  of 
kings — Stephen's  seizure  of  power,  the  accession  of  the  house 
of  Lancaster,  that  of  the  house  of  York,  that  of  the  Tudors — 
called  revolutions,  although  great  changes  were  made  by 
force  in  the  governing  power. 

Some  revolutions,  again,  are  carried  on  in  such  a  spirit  of 
legality,  that  the  administration  of  justice  goes  on  during  the 
progress  even  of  civil  war.  The  justices  went  on  their  cir- 
cuits, in  the  English  strife  between  king  and  parliament,  pro- 
tected by  military  escorts,  as  if  nothing  had  disturbed  civil 
order.  In  our  revolution,  there  was  no  breaking  up  of  the 
existing  governments,  except  at  a  few  points  ;  the  laws  were 
executed,  legislatures  met,  taxes  were  levied  ;  and  it  shows 
in  a  striking  light  the  respect  for  order  among  the  people, 
that  until  after  the  peace  with  England,  there  were  no  tumults 
caused  by  the  extreme  distress  of  society,  and  scarcely  any 
conflicts  between  the  loyalists  and  the  party  of  the  revolution. 

In  many  of  the  modern  revolutions,  the  governments  have 
Treatment  of  revo-  promptly  yielded,  in  the  intention,  no  doubt,  to 

lutions   by  govern-  ri-  1/- 

ments.  brmg  back  the  old  state  of  things  at  the  first 

good  opportunity.  An  einciite  in  a  capital,  followed  by  a 
flight  of  the  court,  the  defection,  perhaps,  of  a  part  of  the 
army,  a  provisional  government,  a  new  constitution — such 
are  some  of  the  phenomena  which  startle  a  nation  like  a  great 
storm,  and  indeed  are  but  political  storms  of  short  duration. 
When  they  end,  it  is  the  past  political  education  of  the  peo- 
ple, with  its  moral  convictions,  that  determine  whether  the 
revolution  will  recur  again,  or  whether  the  provisions  for 
order  suggested  by  a  nation's  experience  will  prevent  them  in 
the  future.  These  revolutions  in  the  capital  or  in  the  large 
towns  indicate  no  general  change  in  the  feelings  of  society, 
nor  any  general  demand  for  the  rectification  of  real  abuses. 
They  are  rather  the  results  of  certain  social  or  political  theo- 
ries, aiming  at  a  theoretical  change  in  a  constitution,  together 
with  the  reformation  of  the  more  glaring  abuses  in  adminis- 


588 


POLITICAL  SCIENCE. 


tration.  They  do  not  spread  over  a  whole  country,  but  are 
confined  to  cities,  and  to  a  few  fervid  minds  in  cities,  which 
claim  the  right  of  changing  the  political  institutions  by  force, 
whether  they  be  few  or  many  ;  for  it  is  the  doctrine  of  some 
political  fanatics,  that  a  revolution  needs,  in  order  to  be 
legitimate,  the  concurrence  neither  of  the  majority,  nor  even 
of  the  thinking  part  of  a  nation  ;  but,  as  the  theory  is  right 
and  they  are  willing  to  take  their  lives  into  their  hands  in 
supporting  the  outbreak,  it  seems  to  have  a  sufficient  sanction 
from  its  own  nature  and  their  disinterestedness. 

Thus,  there  has  been  in  a  number  of  modern  revolutions  a 
want  of  practical  wisdom  which  is  truly  astonishing,  an  in- 
capacity to  build  up,  a  fanaticism  more  fierce  than  ordinary 
religious  fanaticism.  The  hot-heads  miscalculate  success, 
and  are  regardless  of  the  opinion  of  the  nation.  If  they  can 
conquer,  the  state  is  theirs.  If,  meanwhile,  the  mass  of  the 
industrial  classes  is  passive  and  motionless,  absorbed  in  daily 
toils,  with  no  public  thoughts,  it  may  be  easy  to  alter  a  con- 
stitution. But  it  will  be  easy  also  to  undo  what  such  a  revo- 
lution has  wrought,  and  difficult  to  build  up  again  what  it  has 
undone,  to  restore  public  confidence  in  the  stability  of  the 
state.  There  is  great  truth  in  Pindar's  words  (Pyth.,  iv., 
272-274),  that  "  it  is  easy  even  for  a  weaker  sort  of  men  to 
shake  a  state  ;  but  to  seat  it  in  its  place  again  proves  to  be 
difficult  enough,  unless  a  God,  of  a  sudden,  becomes  a  pilot  to 
its  leaders."  If  only  a  chronic  tendency  towards  revolution 
and  a  chronic  fear  of  it  are  left,  the  result  is  bad  enough,  and 
does  not  help  on  true  freedom.  The  revolution  of  1848  in 
France  was  due  to  the  communists  mainly,  and  the  fears  of 
the  middle  class  were  a  great  support  to  Louis  Napoleon  : 
when  thus  a  revolution  belongs  to  a  sect  or  junto,  there  is 
every  probability  that  it  will  be  transitory. 

Most  modern  revolutions  have  differed  from  similar  events 
Ancient  and  mod-  in  the  aucicnt  city-statcs  in  the  greater  preva- 

ern  revolutions  com-  .  .     ,  ,  , 

pared.  Icncc  of  a  moral  conviction  that  the  cause  was 

right,  of  a  political  faith  founded  on  ethical  principles,  and 
not  only  not  inconsistent  with  religion,  but  defended  on  rcli- 


POLITICAL  CHANGES. 


589 


gious  grounds.  Mr.  Guizot  remarks,  that  while  the  EngHsh 
revolution  of  1640  was  essentially  political,  "  it  was  accom- 
plished in  the  midst  of  a  religious  people  and  a  religious  age." 
(Hist,  of  civiliz.  in  Europe,  lect.  xiii.)  In  our  own  case,  a 
large  part  of  the  most  religious  people  of  the  colonies  went 
into  it  with  deliberation,  as  into  a  most  solemn  work  of  self- 
sacrifice.  Mr.  Buchez  (tr.  de  politique,  ii.,  492)  makes  a 
similar  remark  in  regard  to  the  French  revolution:  "The 
constituante  of  1848  has  completed  the  work  of  the  constitu- 
antc  of  1789.  To  the  doctrine  of  rights  it  has  added  the  doc- 
trine of  the  duties  of  men  and  nations.  These  revolutions 
are  both  equally  of  Christian  origin.  The  filiation  of  princi- 
ples is  incontestable,  and,  I  venture  to  say,  evident."  And 
again  (p.  495)  :  "  Unbelief  or  irreligion  is  considered  by  many 
people,  friends  or  enemies  of  the  revolution,  as  the  attributes 
of  the  revolutionary  spirit."  But,  "  in  fact,  the  revolution  is 
a  work  of  faith  and  of  devotion.  Those  who  accomplish  it 
will  not  enjoy  the  good  things  that  it  promises.  One  of  the 
great  benefits  of  religion  is  to  teach  men  to  believe  in  things 
spiritual  and  invisible.  Now,  what  is  there  more  invisible 
than  liberty  and  fraternity,  before  they  become  real  and  cus- 
tomary ?  What  is  there  less  material  and  more  invisible  than 
the  ideal  of  the  future.  The  truth  is,  that  the  revolutionary 
spirit  is  opposed  to  scepticism.  It  did  not  produce  scepti- 
cism— it  submitted  to  it." 

If  Buchez,  confounding  the  ideal  and  the  spiritual,  meant 
to  take  the  spirit  of  Christianity  without  the  doctrine,  in  a 
large  philosophic  sense,  and  thought  equality  and  fraternity 
to  be  equivalents  of  Christian  brotherhood,  there  would  be 
some  consistency  in  his  remarks.  But  he  does  not  hold  to 
such  equivalence.  The  notion  also  is  untenable.  Equality 
of  rights  is  not  a  distinctively  Christian  conception,  but  be- 
longs to  the  general  conception  of  rights  ;  and,  of  course,  a 
religion  with  the  highly  ethical  character  of  Christianity  can- 
not be  hostile  to  justice.  And  fraternity  is  a  caricature  of 
Christian  brotherhood,  a  mere  phantom  without  any  inward 
substance  or  active  power  such  as  belongs  to  a  religion  of 


590 


POLITICAL  SCIENCE. 


redemption.  We  can  say,  then,  that  such  ideas  are  due  to 
Christianity  as  their  causa  sine  qrca  non,  just  as  free  thinking 
is  due  to  it,  but  this  notwithstanding,  they  can  consist  with 
deadly  hatred  to  Christianity  and  with  deadly  selfishness. 
We  can  conceive  of  a  Christian  as  fighting  under  the  flag  of 
fraternity,  but  not  as  taking  it  to  represent  the  spirit  of  the 
gospel.* 

The  forms  of  government  least  exposed  to  revolutions  are 
Governments  least  representative  democracies,  and  constitutional 

exposed  to  revolu-  i .  i 

tions.  governments  where  an  enlightened  public  opin- 

ion prevails.  +  Despotisms  are  safe  from  it,  owing  to  the  want 
of  a  public  opinion,  to  the  difficulty  of  combination  and  the 
inexperience  of  those  who  are  oppressed.  But  under  such 
governments,  court-revolutions,  if  we  may  call  them  so,  may 
prevail,  for  the  despot  is  powerless  against  a  faction  of  his 
principal  servants.  In  a  democracy  with  a  constitution  con- 
taining the  rules  for  correcting  its  own  deficiencies,  the  way 
of  revolt  is  generally  so  unreasonable  and  wasteful  as  to  carry 
condemnation  on  its  face  against  those  who  resort  to  it.  In 
governments  like  England,  where  public  affairs  are  adminis- 
tered, under  an  enlightened  but  somewhat  fluctuating  public 
opinion,  for  the  good  of  the  whole,  the  apprehension  of  future 
evils  prevents  them,  and  the  demand  for  reforms  is  discussed 
in  the  country  before  it  comes  into  parliament.  There  is  in 
such  a  country  scarcely  any  room  for  the  revolutionary  spirit 
to  act.  Accordingly,  while  agitation  and  armed  strife  have 
convulsed  the  continent,  England  has  been  quiet,  reforms  of 
the  most  important  character  have  been  there  carried  on,  one 
by  one,  through  the  last  forty  years,  and  the  country  has  such 
political  experience,  that  revolutions,  unless  caused  by  the 
miseries  of  the  poor  in  adverse  times,  seem  hardly  possible. 
As  in  most  other  nations  of  Europe  a  large  part  of  the 

*  Paul  Janet,  in  a  small  work  entitled  Philosophie  de  la  rev.  Fran- 
^aise,  has  examined  Huchcz's  views  from  another  point,  p.  60  and 
onward. 

f  Comp.  Arist,  Pol.,  viii.  or  v.,  i,  §  9,  already  cited  near  the  be- 
ginning of  this  chapter. 


POLITICAL  CIIAXGES. 


causes  of  disquiet  have  been  removed,  it  is  probable  that  the 
revolutionary  age  is  passing  away.  Nor  can  we  deny  either 
its  necessity,  as  we  look  back,  or  that  its  results  have  been  to 
a  considerable  degree  good. 

The  diftercnt  course  which  revolution  has  taken  in  different 

National  charac-  countrics  is  duc  to  national  character  and  spe- 
lhecoursro"revo"u^  ^^'"^^  historical  Or  social  causes.  In  only  one 
country  did  it  grow  up  out  of  the  soil,  so  to 
speak  ;  in  all  others  the  principles  of  free  thinking,  the  doc- 
trine of  human  rights,  and  the  demand  for  political  reform 
were  imported,  and  recommended  by  the  social  influences  and 
fashions  in  the  country  which  was  its  proper  birthplace.  Why 
was  it  that  in  France  the  modern  revolutionary  spirit  arose  ? 
Why  was  it  that,  after  nearly  ninety  years,  this  spirit  has 
destroyed  so  much  in  order  to  construct  so  little  ? 

The  rise  of  the  revolutionary  spirit  in  France  is  due  to  scv- 

Revoiutionaryspi-  ^^^^  causcs.  One  of  thcsc  is  that  when  the 
ritin  France.  absolutism  of  Louis  XIV.  had  destroyed  ancient 
institutions,  it  put  nothing  in  their  place,  that  thus  the  gov- 
ernment became  weak  under  the  worthless  Louis  XV.,  and 
that  the  brilliant  wits  who  governed  French  society  were  now 
able  to  leaven  public  thought  with  the  principles  of  free  think- 
ing.* Another  consideration  to  be  taken  into  account  is  that 
the  financial  weakness  of  the  government,  not  long  before  the 
outbreak  of  the  revolution,  rendered  it  less  capable  to  resist 
any  movement  which  might  arise  within  the  country.  One 
example  from  abroad — our  revolutionary  struggle,  in  which  we 
had  the  sympathy  and  aid  of  France — greatly  corroborated 
the  political  principles  and  increased  longings  for  a  better 
constitution  awakened  by  Montesquieu's  Spirit  of  the  Laws, 
and  animated  by  Rousseau's  social  contract.  It  might  seem 
strange  that  abuses  coming  down  from  the  feudal  system 
ought  to  be  added  to  these  as  an  important  auxiliary  cause  ; 
but  de  Tocqueville  has  taught  us,  in  his  Old  Regime  and  the 
Revolution,  that  I'rcnch  life  was  groaning  under  tlie  burdens 
on  the  land  and  on  the  peasantry  which  this  defunct  institu- 
*  (iuizot,  Civ.  in  Fr.,  lect.  .\iv. 


592 


POLITICAL  SCIEN'CE. 


tion  bequeathed  to  the  future,  while  the  administration  of  the 
provinces  and  towns  was  exceedingly  wretched.*  When  the 
government  of  Louis  XVI.,  a  virtuous  and  harmless  ruler, 
fell  into  financial  difficulties,  the  cry  was  raised  for  the  States 
General,  which  had  not  been  called  together  since  1615.  On 
their  assembling  the  third  estate,  in  number  double  of  the  two 
others,  induced  the  clergy  first,  then  the  nobles  to  join  it,  and 
this  body,  as  the  National  Assembly,  brought  on  the  first  act 
of  the  revolution. 

The  rights  of  Frenchmen  were  now  established,  a  constitu- 
tion was  formed,  the  laws  were  made  over  again  and  the  old 
institutions  of  society  were  destroyed  by  inexperienced  and 
fanatical  legislators.  A  natural  opposition  from  neighbor- 
ing states  excited  the  military  spirit,  and  the  country  was 
financially  ruined  ;  but  the  military  leaders,  getting  the  better 
of  fanatical  reformers,  brought  on  a  reaction,  and  in  the  nat- 
ural course  of  things  from  extreme  democracy  to  the  tyrannis 
an  empire  was  set  up,  under  which  order  and  security  returned 
to  France.  The  experience  of  the  frightful  excesses  of  revo- 
lutionary frenzy  and  the  gratification  of  national  pride  from 
the  wonderful  career  of  Napoleon  kept  down  the  revolution- 
ary spirit,  and  at  his  fall  the  Bourbon  dynasty  was  restored 
without  the  free  will  of  the  nation.  The  revolution  which  put 
the  Orleans  Bourbons  on  the  throne  was  like  that  which  put 
William  and  Mary  in  the  place  of  James  II.,  and  it  was  not 
until  the  expulsion  of  this  dynasty  in  1848,  by  a  conspiracy 
of  revolutionists  rather  than  by  a  national  movement,  that  the 
course  of  revolution  from  within  again  commenced.  This 
democratic  overturn  was  soon  replaced  by  a  democratic  em- 
pire, chosen  for  the  sake  of  national  security  and  not  for  its 
own  sake.  The  false  and  flagitious  empire  fell  by  its  misfor- 
tunes in  war  in  1870,  since  which  time — after  the  overthrow 
of  the  rule  of  the  mob  and  the  commune — a  republican  gov- 
ernment with  no  definitive  form  and  no  certain  future  has 

*  Afr.  Taine's  new  work  on  the  ancient  regime  shows,  by  a  vast 
amount  of  details,  the  dei^lorable  state  of  France  in  the  last  century. 
Nothing  could  more  completely  justify  a  revolution. 


POLITICAL  CHANGES. 


593 


been  gradually  gaining  strength,  and  shows  a  moderation  un- 
usual for  France.  As  the  royal  and  the  imperial  lines  of  as- 
pirants to  the  throne  cannot  be  united  and  are  both  losing 
ground,  as  the  parties  have  concurred  in  establishing  a  sec- 
ond house  or  senate,  and  as  political  experience  is  now  more 
valued  than  theory,  the  prospects  of  France  for  a  permanent 
form  of  polity  are  better  than  they  hav^e  been  for  a  long  time. 
And  yet  there  are  elements  of  instability  there,  such  as  the 
want  of  an  intelligent,  well  educated  body  of  small  landhold- 
ers, capable  of  forming  an  independent  judgment,  and  not 
passive  in  political  affairs,  together  with  the  concentration  of 
opinion,  ready  to  use  force  if  necessary,  in  large  towns — above 
all,  in  Paris, — which  make  it  doubtful  whether  the  nation  that 
is  so  ambitious  to  govern  itself  is  equal  to  the  task. 

We  may  inquire  in  this  place,  how  are  revolutions  to  be 
Can  revolutions  be  "lade  fcwcr  or  prevented  for  the  future  ?  When 
prevented,  and  how  ?  discusscd  this  point  he  had  a  harder 

problem  to  solve  than  is  presented  in  modern  civilized  and 
Christian  society.  In  many  Greek  city-states  the  factions 
Avcre  like  hostile  camps  watching  one  another  ;  excited  feel- 
ing rushed  to  the  execution  of  a  plan  and  worked  vast  evil 
before  time  for  reflection  came  on.  Suspicion,  fear,  fraud, 
reports  of  secret  dealings  with  foreign  allies,  made  an  out- 
break sometimes  a  relief  from  the  tension  of  the  present.  In 
large  modern  states  such  causes,  if  they  exist,  cannot  be  so 
quick  in  their  operation,  and,  as  we  have  remarked,  the  pros- 
pect that  reforms  can  be  effected  in  a  constitutional  way  re- 
tards revolutionary  feeling  or  diverts  it  from  making  use  of 
force.  The  police  systems  of  modern  societies  put  govern- 
ments in  possession  of  the  reigning  opinion  throughout  a 
nation.  A  free  press,  where  it  is  allowed,  does  the  same 
office,  and  however  violent  or  reckless  it  may  be,  generally 
gives  warning  of  what  is  in  the  mind  of  the  factions.  The 
danger  to  the  stability  of  state  institutions  conies,  it  is  true, 
not  so  much  from  opinion  exploding  into  action,  as  from  slow, 
unperccivcd  changes  in  opinion.  Yet  these  slow  changes  are 
more  within  the  reach  of  estimation  than  they  were  a  century 
VUL.  II.  -38 


594 


POLITICAL  SCIENCE. 


or  two  ago,  for  the  literature  and  journals  continually  place 
them  before  the  public  eye. 

Everything  will  prevent  revolutions  which  impresses  a 
people  with  the  conviction  that  the  government  aims  at  jus- 
tice and  the  public  welfare,  and  which  places  the  people  in  a 
condition  to  form  judgments  on  public  measures.  All  educa- 
tion, if  it  embraces  instruction  in  moral  and  political  duties, 
all  practice  and  political  experience  in  local  and  municipal  af- 
fairs, all  historical  knowledge,  and  other  means  by  which 
national  feeling  is  increased,  are  sources  of  the  spirit  of  order. 
And  when,  from  a  people  educated  by  the  institutions  of  the 
country,  a  voice  comes  demanding  reform,  such  a  voice  will  be 
heeded  ;  the  opinion  of  an  enlightened  people  has  a  power 
that  governments  dare  not  resist.  Thus  mature,  wise  public 
opinion  is  a  great  safeguard  against  revolutions. 

What  effect  on  the  prevention  of  revolutions  is  to  proceed 
from  the  modern  practice  of  training  up  the  young  men  for 
a  certain  time  to  the  use  of  arms?  A  standing  army  has  a 
natural  antagonism  to  the  ordinary  people.  Being  a  pro- 
fession, it  will  have  a  professional  feeling  separating  it  from  the 
general  interests  of  the  country.  But  they  who  are  in  train- 
ing, and  especially  they  who  have  served  out  their  time  and 
have  returned  to  peaceful  occupations,  are  not  thus  divided 
off  by  a  line  from  the  rest  of  the  nation.  It  is  to  be  sup- 
posed that  they  will  better  comprehend  what  war  means  than 
others,  and  will  act  on  the  side  of  existing  order,  if  not  of  re- 
form— not  as  soldiers,  but  as  citizens  who  have  had  a  little  of  a 
soldier's  experience.  On  the  other  hand,  a  faction  or  a  gov- 
ernment can  be  less  sure  than  formerly  of  the  fidelity  of  the 
soldiers  of  the  line,  if  it  is  plotting  the  overthrow  of  a  con- 
stitution, than  formerly  ;  for  the  soldier  has  been  trained  up, 
under  modern  ideas,  to  feel  himself  a  citizen  also.  Yet  there 
is  a  danger,  on  the  other  side,  that  an  administration,  in  con- 
cert with  officers  of  the  army,  will  make  use  of  the  soldiery 
in  coups  d'ltat  by  which  a  constitution  will  be  overthrown,  or 
so  much  of  it  as  the  government  dislikes.  This  would  be  one 
of  the  worst  kinds  of  revolution — a  revolution  in  which  the 


POLITICAL  CHANGES. 


595 


government,  sworn  to  obey  the  constitution,  was  the  principal 
actor.  So  long  as,  in  any  nation,  the  upper  class  does  not 
believe  in  constitutional  government,  and  the  administration 
wants  larger  powers,  this  danger  must  be  allowed  to  be  con- 
siderable. If  such  a  case  should  actually  occur,  it  would  be, 
most  probably,  the  beginning  of  new  revolutions,  and  might 
lead  in  the  end  to  something  in  itself  very  desirable — the 
diminution  of  standing  armies  on  the  urgent  demand  of  the 
people. 

§  275. 

National  declme  and  decay. 

The  decay  of  nations  and  of  states  is  a  commonplace  of 
declamation,  and  has  been  constructed  into  a  theory  rest- 
ing on  a  sort  of  resemblance  between  the  human  body  and^ 
the  body  politic.  As  the  single  man  slowly  develops  into 
manhood,  and  then,  if  not  cut  off,  sinks  into  decrepitude  and 
disappears  by  death,  so  the  nation  grows,  reaches  its  acme, 
and  ceases  to  be.  The  analogy  would  be  closer  if  every  man, 
as  he  grew  old,  became  less  capable  to  govern  himself,  and 
so  died  through  the  decay  of  his  moral  faculties.  If  a  nation 
continued  to  advance  in  the  capacity  for  self-government — if 
it  became  freer,  nobler,  and  more  enlightened,  like  some  men 
in  extreme  old  age,  what  is  there  to  produce  national  decay  ? 
The  light  truth,  moral  and  political  wisdom  that  has  been 
collected,  can  be  taken  up  continually  by  the  new-comers  into 
the  world.  The  forces  that  aid  political  stability  continue  the 
same  at  least,  if  they  do  not  grow  in  influence.  Education 
may  be  better  and  more  general  ;  religion  in  the  life  more 
noble,  in  doctrine  more  simple  and  pure  ;  family  life  need  not 
become  corrupt ;  art  may  reflect  the  sentiments  of  pure  minds. 
If  this  is  possible,  why  should  society  or  a  polity  become! 
worse  through  mere  continuance  ?  ' 

It  will  probably  be  conceded  that  such  considerations  as 
National  decay  not  these  liavc  somc  forcc,  and  will  be  said  that 
mcMMbic.  decay  is  not  a  fatal  necessity  for  a  nation  ;  but 

that,  as  ruined  empires  and  ruinetl  city-states  in  abundance 


596 


POLITICAL  SCIENXE. 


demonstrate,  there  must  be  destructive  influences  at  work  in 
every  nation,  which  are  apt  to  get  the  better  of  the  conserva- 
tive influences  sooner  or  hiter.  Every  form  of  civiUzation 
contains  some  worm  in  the  bud,  every  nation  suffers  for  its  own 
misdeeds  ;  it  is,  in  short,  the  weakness  and  short-sightedness 
of  human  nature  acting  on  a  large  scale,  to  which  national 
decay  is  due. 

Without  denying  the  justice  of  these  remarks,  we  will  en- 
quire what  are  the  leading  causes  likely  to  bring  on  national 
decay,  and  whether  a  nation  can  have  a  hope  of  reform,  when 
once  its  course  is  thus  downward. 

I.  The  cause  from  which  evil  is  more  commonly  appre- 

Causes  which  are  hcndcd  is  the  increasingly  unequal  distribution 
S'b'nng it°on.'        of  property  in  a  country,  as  it  continues  its  in- 

Unequai  distribu-  dustry  through  ages.  There  will  be  a  few  very 
uoii  of  property.  persous  aud  a  vast  multitude  of  very  poor, 

with  a  middle  class  more  or  less  numerous,  according  to  the 
varying  success  of  their  labors.  The  rich,  for  want  of  other 
investments,  will  monopolize  the  land,  receiving  it  in  pay- 
ment of  debts,  or  being  content  with  a  small  interest  on  their 
money.  The  proletarian  class  must  live  from  hand  to  mouth, 
without  much  intelligence,  exposed  to  great  temptations,  be- 
coming weak  in  body  and  in  mind  through  the  influence  of 
unhealthy  food  and  lodgings,  a  prey  to  diseases,  a  prey  to 
demagogues.  The  unity  of  society  is  destroyed  by  this  un- 
equal distribution  of  wealth  ;  one  part,  the  upper  class,  can 
have  no  great  intercourse  or  sympathy  with  their  antipodes, 
and  thus  there  is  no  political  security.  Hope  must  abandon 
such  a  society  and  vigor  of  action  ;  how  can  it  live  when  these 
arc  gone  ?  The  freedom  of  a  government  has  little  influence 
in  checking  these  evils.  It  makes  the  successful  more  suc- 
cessful, because  he  can  go  anywhere  and  devote  his  capital 
to  any  use.  It  rather  brings  on  inequalities  sooner  than  an- 
other sort  of  government.  L.  Marcius  Philippus  affirmed,  in  a 
public  speech  at  Rome,  that  there  were  not  two  thousand 
property-owners  in  the  state;  (Cic,  de  off".,  ii.,  21,  73),  and 
I'liny  the  elder  says  that  "  broad  farms  {iatifuudia)  have 


POLITICAL  CHANGES. 


597 


ruined  Italy  and  the  provinces."  He  adds  that  six  land- 
owners held  possession  of  half  of  the  province  of  Africa,  un- 
til Nero  had  them  put  to  death.  (Nat.  hist.,  xviii.,  35.)  The 
gradual  gathering  of  land  in  England  into  fewer  hands,  and 
the  disappearance  to  a  great  extent  of  the  old  yeomanry,  is 
well  known.  How  can  a  nation  thrive  for  a  long  time, 
where  "  wealth  accumulates  and  men  decay." 

Such  is  a  fair  view  of  the  evils  to  which  nations  are  exposed 
where  the  liberties  of  buying  and  selling  land  are  great. 
But  is  there  no  other  side  to  the  picture  ?  There  are,  as  it 
seems  to  us,  advantages  both  industrial  and  moral  on  the  side 
of  nations  which  have  accumulated  large  amounts  of  capital, 
and  where,  consequently,  the  profits  of  capital  and  the  inter- 
est of  money  are  small.  For  the  capital  must  be  contented 
with  small  returns  and  commodities  are  cheap,  so  that  the 
whole  community,  laborers  and  others,  derive  a  benefit  from 
the  low  price  of  articles  needed  by  all.  Then,  unless  the 
laborers  are  too  many  relatively  to  the  capital,  their  share  of 
the  whole  produce  will  not  be  diminished,  because  the  large 
capital  is  a  constant  demand  for  their  services.  Add  to  this 
that  where  the  returns  to  a  given  amount  of  capital  are  small, 
there  is  a  constant  motive  to  thrift  and  abstinence,  so  that 
industry,  carefulness,  self-restraint  find  in  such  a  state  of 
things  a  greater  motive  to  their  exercise  than  in  countries 
where  it  is  easier  to  grow  rich.  There  is  no  necessity  then 
that  a  large  amount  of  wealth  in  a  country  should  make  it 
hard  for  the  laboring  class  to  live,  or  even  to  raise  their  con- 
dition by  the  use  of  the  capital  of  others.  The  amount 
needed  to  carry  on  a  given  enterprise  is  less,  the  interest  to 
be  deducted  when  money  is  borrowed  is  less,  and  the  willing- 
ness to  lend  as  well  as  the  ability  to  borrow  on  good  security 
greater.  The  comparisons  often  made  between  old  and  newly 
settled  countries,  in  favor  of  the  latter  as  homes  of  the  poor, 
are  in  some  degree  deceptive.  If  land  is  cheap  and  abundant 
there,  that  is  a  great  thing.  But  the  large  wages  in  all  em- 
ployments shrink  when  you  take  rents  and  the  prices  paid 
for  commodities  into  account. 


598 


POLITICAL  SCIENCE. 


Another  consideration  in  favor  of  Christian  lands  that 
have  accumulated  large  amounts  of  capital,  is  that  insti- 
tutions of  humanity  and  enlightenment  are  to  be  found  there 
in  abundance.  From  age  to  age  men  have  been  founding 
hospitals  for  the  sick  and  the  diseased  ;  the  necessitous  are 
sure  of  help  from  private  or  public  sources  ;  the  children  of 
the  poor  can  find  access  to  schools  of  various  kinds  ;  churches 
are  open  to  them  at  a  low  cost  of  pew-rent  or  without  rent. 
We  must  place  the  condition  of  the  poor,  therefore,  in  Chris- 
tian lands  which  have  long  been  settled,  far  above  what  it  is 
in  most  other  countries,  where  neither  public  nor  private 
charity  flows  forth  from  the  rock  of  selfishness. 

This  again  ought  to  be  taken  into  account  :  that  as  long  as 
the  world  contains  room  for  new  colonies,  the  countries  which 
send  out  such  colonies  are  those  where  there  is  constantly 
new  capital  ready  to  undertake  new  enterprises  subsidiary  to 
national  prosperity,  and  that  the  class  looking  for  better  cir- 
cumstances abroad,  consisting  in  part  of  laborers,  will  leave 
room  for  others  at  home.  The  colonies  also,  as  customers, 
will  greatly  aid  production  and  labor  in  the  mother  country. 

It  is,  however,  we  admit,  in  such  old  countries  with  abun- 
dant capital,  that  crises  in  the  world,  panics  arising  out  of 
political  causes,  are  apt  to  be  felt  most.  It  may  be  that 
great  industries  employing  vast  numbers  of  laborers  are 
prostrate,  and  the  workmen  at  a  loss  how  to  sustain  their 
families.  Yet  even  in  such  countries,  whose  extensive  con- 
nections with  the  rest  of  the  world  are  like  nerves  carrying 
pain  through  the  body,  it  is  probable  that  in  hard  times  the 
distress  is  not  so  great  as  it  is  in  countries  cut  off  from  con- 
nections with  other  lands,  where  there  is  no  capital  laid  up 
whatever,  where  every  season  suffices  only  for  the  wants  of 
the  next,  and  suffering  from  famine  finds  no  help  or  alleviation. 
It  is  an  old  remark  that  in  thinly  settled,  isolated  countries, 
failure  of  crops  is  more  disastrous  than  elsewhere,  and  famine 
was  one  of  the  motives  of  the  ver  sacrum  in  Italy. 

We  may  say  then,  I  think,  that  great  accumulations  of 
capital  in  a  country  arc  no  cause  of  distress  in  the  laboring 


POLITICAL  CHANGES. 


599 


class  ;  that  where  money  is  saved  with  difficulty  there  will  be 
most  thrift  and  morality  ;  and  that,  when  this  state  of  things 
exists  with  free  institutions  and  free  proprietorship,  there 
need  be  no  decay. 

2.  It  may  be  said,  again,  that  there  is  a  condition  in 
Is  there  a  natural  countrics  ausweriug  to  thc  youtliand  another 

old  age  of  states?       j.^  ^.J^^,   ^^JJ  ^    ^^^^        Jj^   J-^J^   yOUtll   he  iS 

active,  resolute,  enterprising,  not  deterred  by  difficulties  or 
loss ;  in  his  old  age  cautious,  inclined  to  save  rather  than  to 
gain,  unfit  for  any  new  business,  timid,  saving.  So  a  nation  - 
at  one  time  enters  with  zest  into  the  complications  of  politics, 
is  not  averse  to  the  risks  or  the  expenses  of  war,  has  large 
enterprises  on  foot ;  while  at  another  it  lives  within  itself,  keeps  / 
at  peace  with  all  foreign  powers,  directs  its  attention  towards 
the  problems  of  industrial  and  social  life.  In  the  latter  con- 
dition there  is  something  like  stagnation,  something  like  the 
feeling  of  an  old  man  who  avoids  quarrels  from  fear  and  pre- 
fers quiet  to  all  things.  There  is  no  doubt  that  a  nation  may 
seem  from  its  love  of  peace  to  have  lost  its  spirit,  and  it  may 
thus  provoke  contempt  from  its  neighbors.  Holland  and  Bel- 
gium seem  to  have  such  a  character.  But  while  the  warlike 
and  stirring  virtues  which  men  are  so  apt  to  admire  have 
faded  out  from  the  life  of  such  a  nation,  it  will  not  follow 
that  this  ought  to  be  regarded  as  a  sign  of  decay.  Man 
surely  cannot  be  made  for  war,  and  a  state  of  society 
among  the  nations  in  which  no  wars  exist  ought  not  to  be 
thought  to  have  lost  one  of  the  excellences  of  human  char- 
acter. 

3.  There  may  be  a  decline  in  a  nation's  valuation  of  itself, 
Dcc.-iy  of  a  nation's  '^"'^  fccliug  of  discouragcmcnt,  due  to  loss  of 
self  esteem.  prospcrity  aud  to  relatively  greater  advances  of 
its  neighbors.  Commerce  and  industry  may  pass  over  to 
another  nation  more  intelligent,  with  better  natural  capa- 
bilities, which  is  able  to  bring  its  wares  into  the  markets  of 
the  world  at  a  less  cost.  Or  another  nation  may  take  a 
great  start,  owing  to  some  superior  line  of  policy  and  a  better 
administration,  as  Prussia  has  got  the  start  of  Austria  in  the 


6oo 


POLITICAL  SCIENCE. 


present  age.  Or  great  political  mistakes  may  throw  a  nation 
into  the  background,  producing  discontent  within  and  dis- 
couragement in  regard  to  external  relations.  But  do  such 
causes  as  these,  which  certainly  change  the  relative  place  of 
different  states,  of  necessity  alter  the  political  condition  of 
states  for  the  worse  ?  May  they  not  equally  well  produce 
sobriety,  caution,  a  more  contracted  policy,  a  more  careful 
husbanding  of  all  national  resources,  a  greater  desire  to  pre- 
vent all  complaints  of  the  people  against  the  government  ? 
If  this  can  be  the  result,  the  political  condition  may  be  greatly 
benefited,  and  the  successes  of  other  states,  or  the  feeling  of 
humiliation,  may  be  followed  by  a  new  and  better  period  of 
national  life. 

4.  There  may  be,  again,  a  decline  in  literary  and  artistic 
Decay  of  genius  ability  within  a  nation.     An  age  brilliant  with 
and  culture.  geuius  iu  poctry,  eloquence,  and  the  arts,  may 

be  followed  by  one  of  great  sterility — one  that  is  given  over 
to  false  taste  and  false  art.  A  nation,  like  a  man,  cannot 
without  shame  and  discouragement  feel  itself  to  have  done 
its  best,  and  to  be  doomed  in  the  future  to  mediocrity  and 
imitation.  Where  the  decay  of  taste  and  the  want  of  literary 
genius  may  be  traced  to  something  false,  some  demoralizing 
element  in  the  civilization  of  the  country,  or  to  superior 
motives  for  activity  in  other  pursuits,  or  to  political  evil,  they 
must  exist  until  the  cause  be  removed.  But  at  the  most  this 
can  be  a  cause  only  concurring  with  other  and  deeper  causes 
of  decline.  There  would  have  been  no  good  reason  for  dis- 
couragement because  the  epic  age  lay  far  in  the  past  of  Greece, 
beyond  even  the  historic  period  ;  for  afterwards  came  the 
age  of  lyric  poetry,  of  tragedy,  of  history,  eloquence,  and 
philosophy  in  succession.  There  never  could  be,  perhaps, 
another  Shakespeare  in  England,  and  in  the  ages  of  the  later 
Stuarts  and  first  Georges  everything  sank  down.  But  a  yet 
later  period  showed  that  there  may  be  a  revival  of  national 
genius,  as  soon  as  some  load  of  false  principle  is  taken  off 
or  some  new  spring  is  applied.  Perhaps  the  shaking  off  of 
falsehood  at  the  revolution  of  1688  and  the  awakened  moral 


POLITICAL  CHANGES. 


60 1 


and  religious  sensibilities  of  the  next  century  were  principal 
causes  in  this  change. 

5.  Political  degeneracy,  if  permanent,  may  be  a  cause  of 
Political  hopeless-  national  decline.    And  it  can  easily  happen  that 

a  nation,  after  vain  attempts  to  right  itself  by 
revolutions,  will  give  over  hope  for  the  future  and  be  content 
to  sleep  on  the  cold  breast  of  power,  rather  than  toss  and  turn 
any  longer.  Thus,  what  can  be  more  cheerless  than  the  his- 
tory of  the  Roman  empire  ;  and  what  a  difference  there  was 
between  the  political  activity  during  the  growth  of  the  con- 
stitution, and  the  quiet  despair  of  the  mass  of  the  people  from 
Augustus  onward.  But  this  political  ruin  was  an  effect  of  a 
moral  ruin,  not  a  first  cause  ;  and  a  nation  that  has  lost  its 
character  must  decay  politically  until  some  new  condition  of 
the  world  quickens  it  again  into  life.  The  vices  and  self-in- 
dulgences produced  by  conquest  contributed  their  part  to 
this  decay,  and  the  conquest  of  the  world  reacted  on  the  pol- 
ity and  character  of  Rome  itself ;  but  if  the  character  of  the 
people  could  have  kept  its  early  integrity  and  some  of  its 
hardness,  the  changes  would  have  been  far  less. 

6.  We  come  last  to  the  decay  of  faith,  and  decay  of  morals 
Decay  of  faith  and  going  with  it,  as  surc  signs  of  national  decay  in  all 

respects,  in  political  life,  social  institutions,  and 
all  that  gives  pre-eminence  and  vigor  to  a  nation's  life.  What 
we  call  the  decay  of  civilization  is  indicated  by  many  symp- 
toms. Among  these  are  the  false  art  and  taste  which  we 
have  spoken  of;  the  tendency  to  self-indulgence  and  the  ab- 
sence of  the  sterner  self-asserting  virtues  ;  the  loss  of  interest 
in  political  life  as  well  as  of  political  virtue  ;  the  selfish  reluc- 
tance of  individuals  to  exert  themselves  for  the  public  good  ; 
the  cosmopolitan  feeling  that  owns  no  bonds  of  country  ;  the 
disposition  to  sneer  at  heroic  virtues  and  to  doubt  the  worth 
of  things  valued  in  older  times — all  of  which  involve  a  disso- 
lution of  the  tie  that  binds  a  man  to  his  country.  Of  course 
this  state  of  character  makes  political  life  corrupt,  and  weak- 
ens the  stability  of  a  government.  But  below  this  lies  a 
profligate  condition  of  morals,  marked  especially  by  falsehood 


6o2 


POLITICAL  SCIENCE. 


and  excess  in  pleasure  ;  and  below  ev^en  these  is  a  loss  of  faith 
in  religious  realities,  a  want  of  belief  at  once  in  God  and  in 
moral  virtue.  This  may  take  the  positive  form  of  absolute 
denial  of  any  divine  existence,  united  with  contempt  for  ele- 
vated motives  of  action,  which  made  the  full-blown  ancient 
tyrant ;  or  the  painful  scepticism  that  wanders  from  one  creed 
or  philosophy  to  another,  doubts  everything,  and  is  too 
irresolute  to  have  fixed  principles  of  action.  The  Greeks 
after  the  age  of  Alexander  show  these  traits  to  a  sickening 
degree.  All  ancient  faith  was  gone  ;  prudential  morality  was 
the  highest  principle  of  character.  The  nobler  men  studied 
philosophy,  and  there  was  no  field  for  them  in  the  public 
world.  The  same  feelings,  especially  that  of  sceptical  despair, 
appear  at  Rome  and  greatly  help  on  the  corruption  of  society. 
Indeed,  it  would  seem  to  be  made  out,  both  on  historical  and 
on  a  priori  grounds,  that  all  heathen  religions  are  doomed  to 
be  destroyed  by  natural  and  moral  philosophy  revealing 
their  inconsistencies  with  the  physical  world  and  with  the 
highest  principles  of  morals.  It  is  idle  to  hope  that  political 
institutions  which  need  support  from  religion  and  morals 
can  maintain  themselves  when  both  give  way. 

The  question  must  now  be  asked,  whether  the  institutions 
Are  the  institu-  of  modem  socicty  have  any  such  independence 

tions  of  modern  soci-  r  •  \  i  1        ■      •    i         i  i  • 

ety  self-sustaining?  upon  faith  aud  oioral  pnnciple,  that  then- energy 
could  survive  an  age  of  atheism  and  profligacy  ?  Can  mod- 
ern society,  in  its  superior  wisdom  and  with  the  experience 
of  the  past  all  stored  up  for  its  use,  be  able  to  steer  its  way 
sagaciously  and  successfully  without  any  religion  at  all  ;  and 
can  morality  have  its  due  sway  when  it  is  a  mere  conviction 
concerning  what  is  wise  and  good,  apart  from  the  motives 
which  the  Christian  religion  presents  to  mind  and  heart  ? 
On  a  suljject  requiring  long  discussion  we  can  offer  but  one 
or  two  considerations. 

The  history  of  the  past  docs  not  authorize  the  opinion  that 
nations  carry  down  within  them  any  great  amount  of  wisdom 
from  one  generation  to  another.  At  least  they  cannot  be 
thought  capable  of  doing  this  without  carrying  down  with 


POLITICAL  CHANGES. 


603 


them  correct  moral  judgments  and  moderation  in  action, 
which  neither  scepticism  nor  atheism  can  call  forth.  The 
progress  of  society  brings  with  it  new  problems  to  solve.  At 
present  the  problem  of  the  future  of  the  working-classes,  of 
their  principles  and  relations  to  property  and  government,  is 
a  very  serious  one,  and  becomes  gloomy  and  alarming  when 
the  pressure  of  financial  and  commercial  distress  is  felt. 
These  classes  have  learned  no  wisdom,  and  can  learn  none  but 
by  coming  under  the  control  of  pure  moral  and  spiritual  ideas. 
It  was  a  part  of  the  oath  of  the  dikasts  at  Athens  that  they 
would  not  consent  to  the  cancelling  of  private  debts  nor  to  the 
redistribution  of  land.*  Are  the  communists  now  any  nearer 
to  regarding  such  things  to  be  flagitious  than  the  ancient 
demagogues  were,  or  any  the  less  afraid  to  avow  their  hostili- 
ty to  the  family  institutions,  to  transmission  of  property  by 
testament?  Have  we  not  seen  in  the  present  age  an  empire 
established,  because  the  middle  class  was  afraid  of  the  actors 
in  the  revolution  on  this  very  account?  The  truth  is  that  in 
addition  to  misgovernmcnt  and  to  calamities  arising  from  the 
close  connection  of  the  parts  of  the  world,  which  propagate 
their  waves  of  commercial  distress  as  if  through  the  sky  all 
abroad,  we  have  new  principles  of  justice,  claims  of  absolute  / 
equality  of  condition  through  society,  claims  which  so  kindle 
the  feverish  brain  of  the  depressed  that  nothing  can  lead  them 
to  patience  and  tranquillity  but  some  of  those  Christian  virtues 
which  they  have  cast  off.  The  tendency  is  not  to  the  dis-  \ 
charge  of  duties  in  these  times,  but  to  -the  enforcement  of 
claims,  which  society  cannot  admit  because  they  would  be 
attended  with  immediate  financial,  social  and  political  ruin. 
Nor  does  it  appear  possible  that  a  pure  code  of  morals,  per- 
Can  ihere  be  pure  vading  a  commuuity  without  religious  faith  to 

morals  without  rc- 

I'B'O"?  support  it,  could  have  much  ability  to  sustain 

the  fabric  of  society  and  of  the  state.  A  sway  of  pure  morals 
consists  in  this,  that  a  just  conception  of  character,  a  true 
idea  of  a  perfect  life,  should  be  so  fixed  in  the  minds  of  men, 


*  Dcniost.  c.  Tiinoerates,  pp.  746,  747,  i;^  149,  150. 


6o4 


POLITICAL  SCIENCE. 


that  all  the  virtues,  such  as  benevolence,  moderation,  self- 
restraint,  self-sacrifice,  should  be  called  into  exercise  on  the 
right  occasion.  But  how  can  this  standard  be  maintained 
when  there  are  no  considerations  to  support  it,  except  those 
that  are  derived  from  prudence,  and  from  the  beauty  of  such 
a  character  itself?  The  single  vice  of  intemperance,  by  its 
wide  spread  in  the  most  intelligent  countries  and  the  best 
governed,  shows  that  freemen,  where  facilities  for  pleasure  in 
excess  are  within  their  reach,  will  exercise  no  self-restraint. 
Simple  societies  without  great  wealth,  with  substantial  equal- 
ity, run  along  in  a  smooth  track  ;  but  when  the  relations  of 
men  in  a  community  become  complicated,  when  inequalities 
are  continually  arising  from  one  cause  or  another,  when  a  ten- 
dency towards  excitement  becomes  a  characteristic  of  a  people, 
inordinate  gratification  is  made  the  law  of  their  life  by  many ; 
nor  have  the  rules  of  right,  or  the  conceptions  of  a  perfect 
life,  any  power  over  those  who  are  in  the  whirl  of  excess. 

There  is  then  a  need,  in  advanced  societies  above  all,  of  a 
principle  which  is  not  only  regulative,  but  purifying  and  re- 
formatory, which  acts  on  character  with  a  motive  power,  ap- 
pealing, where  it  is  received,  to  the  leading  forces  in  man's 
nature,  to  love,  gratitude,  hope,  as  well  as  to  the  sense  of 
right,  by  influences  not  abstract,  but  drawn  from  life  and  his- 
tory— above  all,  from  the  life  of  one  who  can  act  by  a  person- 
al sway  over  those  who  accept  his  authority  and  guidance. 
The  union  of  the  moral  and  spiritual  in  Christianity,  and  its 
appeals  to  universal  principles  in  human  nature,  adapt  it,  if 
believed  to  be  true,  to  be  a  controlling,  permanent  force  in 
society.  And  as  such,  it  can  act  on  those  to  whom  political 
power  is  entrusted,  to  make  them  fear  God  and  serve  the 
people,  and  on  those  who  are  under  law,  to  make  them  obe- 
dient to  law  ;  to  lessen  crime,  to  bind  the  parts  and  orders  of 
society  together,  to  produce  moderation  and  love  of  order  ; 
to  call  forth  at  once  the  sense  of  rights  because  it  discloses 
the  destiny  of  man,  and  the  spirit  of  duty  because  its  very  basis 
is  obligation.  I  do  not  say  that  Christianity  can  sustain,  or 
that  it  ought  to  sustain,  corrupt  political  parties  ;  I  do  not  say 


POLITICAL  CHANGES. 


605 


that  it  will  purify  at  once,  or  will  even  save  from  disintegra- 
tion and  ruin  a  corrupt  society,  nor  that  at  any  stage  of  human 
progress  it  will  effect  a  perfect  conformity  between  even  a 
healthy  society  and  its  own  idea.  But  I  say  that  it  is  making 
all  things  new,  and  if  it  can  act  constantly  within  a  society  to 
raise  and  harmonize  many  of  the  members,  a  new  order  of 
things  in  the  state  will  sooner  or  later  follow.  Aside  from  the 
assistance  afforded  to  society  and  the  state  by  this  force,  de- 
cay must  come.  How  can  mere  prudence  or  self-interest  re- 
press the  excesses  of  those  who  believe  nothing  and  have  no 
principle  of  right  within  them,  especially  if  they  imagine  that 
society  has  injured  them,  and  if  they  hate  it  ? 

There  is  a  celebrated  passage  in  Plato's  republic  (v.,  18,  473 
D.)  where  Socrates  is  made  to  say  that  unless  philosophers 
shall  be  kings  in  the  cities,  or  kings  and  dynasts  shall  be  well 
acquainted  with  society,  so  that  none  but  those  who  unite 
both  of  these  properties  shall  have  rule  in  the  state,  there 
will  be  no  end  of  evils  possible  for  states  and  for  mankind.  If 
by  these  expressions  he  would  have  us  understand  that  the 
true  philosopher — that  is,  the  man  of  true  wisdom  and  practical 
insight — must  rule  if  the  people  are  to  be  well  governed, 
we  may  accept  of  them  as  true.  And  yet,  like  other  opin- 
ions of  Plato,  they  only  give  us  half  the  truth.  The  conceited 
theorist  in  places  of  authority  may  do  more  harm  than  an 
ignorant  man  who  follows  the  guidance  of  wise  counsellors. 
And  where  is  a  corrupt  state  to  find  good  rulers  ?  Certainly 
they  are  not  made  such  at  home,  for  the  corruption  of  society 
acts  on  all  classes,  on  ruler  as  well  as  people.  Nor  can  such 
a  society  be  successful  in  discovering  who  will  make  good 
rulers.  Or  if  they  arc  found,  and  are  in  character  above  the 
men  whom  they  govern,  it  is  but  a  very  little  that  they  can 
do  to  stem  the  tide  of  general  corruption  ;  they  retard  the 
crisis  of  ruin  rather  than  work  reform.  They  arc  a  very  small 
force  compared  with  the  forces  of  evil  in  society  and  in  con- 
stitutions. They  die,  and  if  they  leave  heirs  of  their  own 
blood  in  their  places,  these  are  not  certain  to  walk  in  their 
steps.    The  evils  in  society  arc  likely  to  do  more  harm  to  a 


6o6 


POLITICAL  SCIENCE. 


ruler  than  he  can  do  good.  We  need  then  a  mor-al  and  spirit- 
ual force  that  shall  pervade  society,  that  can  go  downward  as 
Avell  as  upward,  that  can  produce  an  enlightened  general 
opinion  on  the  rights  and  the  qualities  of  a  good  government 
and  on  the  political  duties  of  citizens,  and  that  can  fortify  all 
this  by  the  power  of  ennobling  realities.  Whether  a  particu- 
lar government  can  be  made  better,  or  must  be  made  over, 
cannot  be  told  beforehand  ;  but  if  the  latter  alternative  is 
necessary,  it  can  begin  again  with  new  sobriety  under  the 
control  of  moral  and  spiritual  truth.  It  seems  probable  now, 
as  we  look  back,  that  the  Roman  empire  could  not  have  been 
reformed,  that  the  overturnings  and  disintegration  effected  by 
the  German  invaders  were  a  necessary  introduction  to  a  new 
order  of  things.  It  would  seem  that  in  Christian  communi- 
ties, where  the  mass  of  the  people  were  neither  without  faith 
nor  without  principle,  but  corruption  had  been  long  on  the 
increase,  some  new  putting  forth  of  the  power  of  purifying 
truths  and  principles  could  in  time  do  away  with  the  evil. 
But  this  we  affirm,  that  decay  of  states  and  degradation  of 
polities  are  necessary  in  old  societies,  where  faith  has  become 
extinct  and  moral  principle  has  lost  its  power  ;  that  the  re- 
vived prevalence  of  Christian  faith  can  raise  a  nation  from  its 
corruption,  where  this  corruption  has  not  run  to  an  extreme  ; 
and  that,  where  a  catastrophe  has  come,  that  same  POWER 
can  in  the  end  give  a  second,  a  reformed  life  to  a  people. 


INDEX. 


The  figures  standing  alone  denote  pages  of  Vol.  I.  For  the  first  references  under 
a  title  to  VoL  IL,  ii.  is  added.    The  sections  of  Vol.  II.  begin  with  $  177. 


Achaean  league,  ii.  181-194  ;  first  form, 
182;  laterform,  ibid.;  constitution,  183- 
189  ;  external  relations,  to  whom  com-  . 
mitted,  183  ;  primary  assembly,  184  ;  ! 
senate,  185;  equality  of  members,  186; 
magistrates,  ibid.;  the  general,  187;  pow- 
ers of  the  senate,  188  ;  federal  courts,  ' 
189  ;  the  league  not  a  strict  confedera-  I 
tion,  190-192 ;  causes  of  its  failure,  192,  j 
193- 

Adoption,  right  of,  106. 

Adultery,  its  penalty  in  several  codes, 

357  ;  sometimes  looked  on  only  as  a 

private  injury,  358. 
Advocate,  the,  as  a  part  of  the  judicial 

system,  ii.  346. 
^sciiiNEs,  the  orator,  his  account  of 

the  Amphictyonic  league,  ii.  177-179. 
iETOl.lAN  league,  ii.  180,  181. 
Africa,  negro  tribes  of,  their  govern- 
ment, 448. 
AuRENS,  Prof.,  on  rights,  134, 
Amphictyonic  league,  176-179.  See 

Confederation. 
Arab  tribes,  institutions  of  some  of  them, 

452.  453- 

Akistoti.e,  often  cited,  as  on  justice, 
I20-I22;  on  slavery,  122,  123  ;  his  objec- 
tions to  Plato'scommunity  of  goods.  320; 
on  relative  criminality  of  actions,  356; 
on  political  changes,  407 ;  on  forms  of 
governments,  466, 467;  on  mixed  govern- 
ments, 471;  on  the  constitution  of  Spar- 
ta, 470,  540-543  ;  on  Solon,  471  ;  on  the 
tyrants  in  Greece,  513-515  ;  on  aristoc- 
racy in  Greece,  ii.  3-1 1  ;  on -the  insti- 


tutions of  Carthage,  37,  38,  et  seq.;  on 
demagogues  in  a  democracy,  106 ;  on 
plans  to  check  the  power  of  a  democ- 
racy, 112;  on  the  meaning  of  dcmus, 
125  ;  on  the  causes  of  the  long  continu- 
ance of  the  Spartan  monarchy,  269  ;  on 
personal  solicitations  for  office,  325,  n.  ; 
on  the  causes  and  the  means  ot  pre- 
venting revolutions,  577-583. 
Aristocracy,  ii.  i  ;  in  Greece,  2-11 ; 
aristocracy  and  oligarchy,  2 ;  names 
given  to  the  upper  class,  3  ;  elements 
in  A.  4  ;  A.  and  membership  in  the 
tribes,  ibid.  ;  a  council  or  councils  in 
aristocracies  there,  4,  5  ;  magistrates, 
6;  administration  of  justice,  7;  efforts 
against  change  of  polity,  8-10;  dangers 
in  h.  and  oligarchy,  10,  11  ;  party 
spirit,  12.  A.  at  Rome,  ii.  12-15  ;  f- 
pulus,  13  ;  consuls,  14 ;  throwing  open 
offices,  14,  15 ;  senate  as  organ  of  aris- 
tocracy, 16-18  ;  its  functions,  18-22  ; 
increase  of  rights  of  p/ebs.  22  ;  right  of 
appeal  by  tlie  Valerian  law,  23;  crea- 
tion of  tribunes,  ibid. ;  their  part  in  the 
constitution,  24,  25  ;  revision  of  the 
laws,  26,  27 ;  laws  of  twelve  tables  not 
political,  ibid.;  military  tribunes,  28; 
censors,  28  ;  consulate  opened  to  plebs, 
30;  Licinian  l.iws,  ibid.;  pr.xtorship  and 
office  of  pontiff  opened,  31.  32  ;  rise  of 
an  oligarchic  party,  33  ;  the  optimatcs, 
34  ;  CrBS.-ir's  ascendancy,  ibid.  A.  in 
Carthage,  35-42  ;  account  of  the  govern- 
ment by  Aristotle,  37-39  ;  senate  and 
judges,  39,  40  ;  suflfctos  or  kings,  41 ;  a 


6o8 


IxVDEX. 


commercial  aristocracy,  42.  A.  in  Ve- 
nice, remarkable  as  increasing  continu- 
ally, 43  ;  rise  of  Venice,  44,  45  ;  tribunes 
and  classes  of  people,  45,  46  ;  dukes, 
46,  47 ;  could  not  become  hereditary, 
ibid.  ;  office  of  doge,  48-50  ;  methods 
of  electing  the  doge,  49  ;  his  limited 
power,  50 ;  the  grand  council,  50-55  ; 
mode  of  election,  51 ;  the  "  closing  "  of 
the  council,  52-54  ;  doge's  council  and 
thepregadi,  55  ;  the  quarantia,  56  ;  the 
ten,  ibid.  ;  the  three  inquisitors,  58.  A. 
in  Florence,  60-95  '•  can  F.  be  called  an 
aristocracy,  93-95.  See  Florence.  A.,  its 
origin,  95-97  ;  is  not  found  in  all  nations 
and  races,  97,  98  ;  titles  of  nobility,  98  ; 
efficiency  of  a  noble  class,  99.  A.  in  a 
republic,  evils  of,  ibid.;  British  A.  as 
fitting  into  the  polity,  100  ;  dangers  of 
privileged  classes  in  the  future,  100, 
loi ;  municipal  aristocracy,  loi. 

Arnold,  Dr.  T.,  on  institutions,  ii.  353, 
354 ;  on  relation  betw  een  church  and 
state,  487-493 ;  opposed  to  Warburton's 
theory  and  agreeing  in  the  main  with 
Hooker's.  The  force  and  wisdom  of  a 
state  ought  to  be  united,  the  church 
should  have  power  to  raise  its  condi- 
tion morally  and  physically,  487 ;  no 
true  distinction  between  physical  and 
secular  things,  no  priestly  order  in 
Christianity,  488  ;  the  state  has  or  ought 
to  have  a  religion,  ibid.  ;  its  business  is 
not  secular  alone,  ibid.  ;  he  considers 
excommunication  a  penalty,  490;  a 
perfect  church  may  punish  opinions, 
ibid.;  he  would  exclude  non-Christians 
from  citizenship,  491  ;  what  he  calls  a 
Christian  state,  492;  objections  to  his 
highly  ideal  view,  493. 

Association,  right  of,  80-83;  limitations 
of,  82,  277  e/  ser/. ;  secret,  279. 

Athens,  under  kings,  $  161  ;  tribes  and 
smaller  divisions,  458,  460,  489,  490; 
slow  development  of  institutions  at  first. 
Hid.;  a  democracy,  ii.  123-138.  Solon's 
reforms,  123  ;  democratic  changes  after 
Solon,  125;  the  dcmi,  ibid.;  the  lot, 
126  ;  ostracism,  127  ;  office  open  to  all, 
ibid. ;  democracy  under  Pericles,  128  ; 
laws  and  pscphisinahi,  ibid.;  executive 


power  divided  up,  129 ;  dokimasire, 
130  ;  courts  of  justice,  130,  131  ;  trials, 
132  ;  evils  of  the  system  of  courts,  133  ; 
pay  to  dikasts  and  in  the  ecclesia,  133, 
134  ;  its  effects,  134  ;  liturgia  and  trier- 
archy,  135-138. 
AusTi.v,  J.,  on  rights,  128-130;  remarks 
by  Mr.  Stephen  on  his  theory,  129 ;  by 
the  author,  130  ;  his  definition  of  sover- 
eignty, 203. 

Babeuf,  his  conspiracy,  317  ;  his  com- 
munism, 316-318. 

Bagehot,  W.,  on  the  English  constitu- 
tion, cited,  557;  criticised,  559,  560. 

Barthelemy-Saint-Hilaire,  his  trans- 
lation of  Aristotle's  politics  cited,  ii. 
38,  and  elsewhere. 

Beccaria,  Marquis,  on  penalties,  336, 
342-344. 

Bedavveens,  their  institutions,  452. 

Bentham  on  liberty,  34 ;  his  rationale 
of  punishment  noticed,  352-354. 

Bethman-Hoi.lweg  cited,  126. 

Bloou-revenge,  39,  373,  438. 

BoNALD  on  the  state,  149. 

Boniface  VIII.,  Pope,  his  claims  against 
princes,  461. 

Brodrick,  Hon.  G.  C,  on  choice  of 
municipal  officers  in  England,  ii.  382  ; 
on  "  unions  "  taking  the  place  of  tow  n- 
ships, 387. 

BucilEZ,  on  right  of  property,  68 ;  his 
theory  examined,  69,  70. 

Burke,  his  dislike  of  abstractions,  184; 
his  political  views  those  of  the  whigs, 
ibid.  ;  accepted  contract  as  a  source  of 
political  rights,  ibid.  ;  on  revolution, 
415. 

Cat.houn,  J.  C,  on  representation  of 
interests,  ii.  292,  293. 

Capital  punishment,  of  old  in  the  hands 
of  the  family  of  the  mu.dered  person, 
372  ;  the  goel  among  the  Hebrews,  ibid. 
Penalty  for  murder  at  Rome,  373; 
among  the  ancient  Germans,  ibid.;  in 
India,  374 ;  right  to  punish  capitally, 
374  ;  expedience  of  so  doing,  375. 

Cakthagk,  its  government,  ^  181,  ii.  35- 
42  ;  relation  to  Tyre  and  Phoenician 


INDEX. 


609 


colonies,  36,  37  ;  pentarchies  of  Aris- 
totle, nothing  known  of  them,  38.  See 
Aristocracy. 
Casuistry,  political,  or  special  questions 
of  political  ethics  examined,  382-430. 
Can  the  individual  give  up  his  allegi- 
ance ?  383-385.  E.xlent  of  obedience  to 
law  and  magistrate,  386,  387.  Obliga- 
tion to  vote,  3S8.  Relations  of  individ- 
uals to  parties,  389-393.  Collisions  of 
law  and  conscience,  394-396.  liow 
ought  the  state  to  deal  with  bad  institu- 
tions ?  396-402.  Right  of  resistance  to 
law,  or  right  of  revolution,  402-406. 
Opinions  on  this  right — Plato's,  406  ; 
Aristotle's,  407  ;  among  the  Jews,  408 ; 
in  the  middle  ages,  408  ;  right  to  resist 
the  suzerain  under  the  feud.  syst.  ibid.  ; 
theories  after  the  reformation,  409 ;  Mil- 
ton on  this  right,  411-413  ;  opinions  in 
England  in  :638,  413 ;  Locke's,  414  ; 
Burke's  415 ;  French  theory  of  the 
right,  416 ;  opinion  in  the  United  States, 
416,  417.  Kant  on  resistance  to  politi- 
cal authorities,  417,  418;  Stahl,  419; 
Fichte,  420  ;  R.  Rothe,  421,  422.  Teach- 
ings of  the  New  Testament,  423-425. 
The  private  individual  has  no  right  of 
revolution,  but  only  the  people,  426. 
Practical  consideration  alone  can  justify 
in  any  given  case,  426,  427.  A  people 
has  this  right,  428,  429.  The  right  and 
its  exercise  for  the  good  of  the  world, 
430 

Ch.-vnges,  political,  causes  of.  See  Polit- 
ical Changes. 

CnAK.\CTKK  of  candidates  for  office  not 
enough  considered,  391  ;  effect  of  with- 
holding votes  on  account  of  bad  charac- 
ter, 392. 

Charity.    See  Poor,  Public  Charity. 

Cni.s'KSE  monarchy,  501 ;  absolute  patri- 
archal, iiiii.  ;  checked  by  the  opinion  of 
the  wise,  Hid.  ;  a  certain  right  of  revolu- 
tion acknowledged,  502. 

Christianity,  its  relation  to  personal 
rights,  30,  31. 

Church,  mcdircv.il,  its  theory  of  the 
state,  148  ;  revived  in  recent  times,  149. 
See  Relations  of  Church  and  State,  and 
Religion. 

VOL.  n. — 39 


Cicero,  on  Justice,  124 ;  on  the  state, 
148. 

CiRCASSiA,  institutions  of,  443  ;  especially 
brotherhoods,  444 ;  mutual  responsi- 
bility, Hid. 

Cities,  rise  of,  463-465;  city-states,  their 
early  kingly  government,  487-492  ;  as 
aristocracies,  $j  178,  179 ;  as  democra- 
cies, ii.  103-107.  See  Athens.  Govern- 
ment of  cities,  374-383.  See  Municipal. 

Citizen,  is  he  bound  to  vote  ?  388  ;  or  to 
hold  an  office,  if  elected  ?  ibid. 

Clisthenes  begins  the  extreme  democ- 
racy at  Athens,  ii.  126,  127. 

Collisions  of  law  and  conscience,  394- 
397 ;  rules  of  action  in  such  cases,  395  ; 
over-scrupulosity  possible,  396.  C.  of 
rights,  34. 

Colonies,  Greek,  ii.  160 ;  Roman,  151- 
153;  Spanish,  160-163;  English,  163. 
Motives  in  colonizing,  Roman,  160  ; 
Spanish,  161  ;  English,  ibid. 

COMBiNATio.v  enliances  crime,  358. 

Commons,  house  of,  in  England,  its  rise 
and  growth,  565  et  scq.  ;  weakness  at 
first,  566 ;  annual  parliaments,  567 ; 
neglect  of  this  rule,  567,  568  ;  power  of 
granting  supplies  and  of  petitions  first 
sources  of  power,  568  el  seq.  ;  employed 
in  political  measures,  571,  572  ;  inde- 
pendence, 572  ;  jealousy  of  churchmen, 

573  ;  acts  as  an  extraordinary  court, 

574  ;  privileges  of  parliament,  574-576  ; 
boroughs  often  sent  non-resident  repre- 
sentatives, 576;  controlled  by  neigh- 
boring land-owners,  577  ;  rotten  bor- 
oughs, 577,  578;  reforms  of  1832,  1867, 
578  ;  great  powers  of  parliament,  579. 

Communism  and  socialism  what,  313,  314. 
BabeuTs  plan  of  commtmism,  316 ; 
other  plans,  318,  319 ;  evils  of,  320-322. 

Co.M.MUNlTiES  early,  family  and  village, 
51-60;  writers  on  early  c,  52,  53  ;  no- 
tices of  in  Greek  and  Roman  writers, 
S3.  54;  German  c,  54;  Scandinavian, 
55  ;  Slavonic  c. ,  56  ;  survival  of  old  Cel- 
tic, 56;  in  India,  57;  in  Java,  58;  in 
Mexico,  ibid.;  Sir  II.  S.  Maine  on  the 
kinds  of.  59  ;  property  of  two  communi- 
ties as  distinct  as  of  two  persons,  60. 

CoMi'osiTE  governments,  ii.  146  ct  scq. 


6io 


INDEX. 


two  kinds :  a  state's  tie  to  conquests 
or  colonies;  and  confederations,  147; 
Persia  and  its  provinces,  148  ;  Roman 
provinces,  151-156  ;  provincial  govern- 
ment, 157,  158.  Roman,  Spanish,  Eng- 
lish colonies,  159-164 ;  English  de- 
pendencies, 164,  165.  See  Colonies, 
Confederations. 

Confederations,  nature  of,  ii.  166 ; 
kinds,  168  ;  a  delicate  kind  of  govern- 
ment, 172  ;  under  what  conditions  prac- 
ticable, 173 ;  confederate  monarchies, 
174  ;  origin  of  early  c. ,  175  ;  amphic- 
tyonia,  sense  of  the  word,  ibid.  ;  the 
amphictyonic  council,  176-179 ;  its  mem- 
bers, 176;  meetings,  176,  177;  connec- 
tion with  Delphi,  176;  officers,  etc., 
177 ;  agency  in  historic  times,  178,  179. 
The  ^tolian  league,  i8o,  181.  The 
Ach^an  league,  181-193.  See  Achae- 
an. The  Lycian  league,  193,  194; 
dissolved  by  the  Romans,  194.  Ger- 
manic confederations,  194-208.  See 
Germanic  Confederations.  Swiss  con- 
federations, 208-223.  See  Swiss  Con- 
federations. Dutch  United  Provinces, 
223-236.  See  Dutch  United  Provinces. 
United  States  of  America,  236-257.  See 
United  States.  General  remarks  on 
confederations,  $  215. 

Confinement.    See  Imprisonment 

Confiscation,  362. 

Connecticut,  its  steadiness  in  its  earlier 
history,  ii.  140;  its  charter,  ibid.;  in- 
equality of  suffrage  districts,  143. 

Consent  of  a  people  to  its  government, 
is  it  necessary  ?  286 ;  meaning  of  the 
term,  ibid. 

Constitution  of  a  state  what?  283; 
forms  of,  284;  interpretation  of,  285; 
is  usually  a  limitation  of  power,  285.  n. 

Constitutional  monarchy,  579,  580; 
secure  inviolability  of  sovereigns,  580- 
585 ;  legislatures  lack  control  in  them 
over  armies,  585. 

Constitutions,  written  and  unwritten, 

545-547.  579- 
Contracts,  right  of,  72-80;  nature  of, 
72  ;  importance  of  increases  with  civili- 
zation, 73 ;   how  it  begins,  74 ;  why 
binding,  74,  75;  transfers  but  not  cre- 


ates rights,  75,  76  •  immoral  contracts 
void,  76,  77 ;  quasi-contracts,  vuda 
pacta,  77  ;  the  consideration  what,  ibid. 
Two  kinds  of  contracts,  78,  79.  Con- 
tract used  to  explain  civil  society,  79; 
and  the  state,  ibtd.  See  Hobbes,  Spi- 
noza, Rousseau. 
CooLEY,  Judge,  on  constitutional  law, 
285. 

Corporal  punishment,  365 ;  in  Ger- 
many, ibid.  ;  elsewhere,  ibid.  ;  almost 
unknown  to  the  Romans,  in  the  case  of 
freemen,  ibid.  ;  a  questionable  form  of 
punishment,  366. 

Correction  not  the  main  end  in  penalty, 
330,  but  an  important  end,  354. 

CoURCELLE  Seneuil,  on  indirect  elec- 
tions, ii.  298,  300  ;  on  election  of  chief 
magistrate  in  France,  276. 

Cruelty  to  animals,  ii.  431-433.  See 
Moral  Legislation. 

Crimes,  their  relative  greatness,  354, 
355  ;  difficulty  of  proportioning  crime 
and  penalty,  356  ;  aggravating  or  ex- 
tenuating circumstances,  357-360;  com- 
pound crimes,  359;  crimes  committed 
to  relieve  want,  ibid.  ;  crimes  that  are 
difficult  of  detection,  ibid. ;  estimates  of 
crime  fluctuating,  356 ;  frequency  of, 
as  affecting  penalty,  359 ;  repetition  of 
offence,  as  enhancing  penalty,  360 ;  epi- 
demic crimes,  377 :  political  crimes, 
378  ,  public  opinion  in  relation  to  pen- 
alty, 379  ;  limitations  of  time  in  prosecu- 
ting for  crimes,  381.  Crimes  against 
religion,  ii.  508-513.    See  Religion. 

Curtis,  G.  T.,  on  the  old  confederation, 
ii.  243,  248. 

Dahi.man,  Staatslehre  cited,  582,  583. 

Decline  and  decay  of  states,  ii.  595-606. 
National  decay  not  inevitable,  595; 
causes  which  are  thought  to  bring  it  on, 
596-602  ;  unequal  distribution  of  prop- 
erty, 596;  accumulation  of  capital.  597, 
598 ;  exposure  of  industrial  countries 
to  panics,  598  ;  is  there  a  natural  old  age 
of  states?  599;  effect  of  a  nation's  loss 
of  self-esteem,  599,  600 ;  decay  of 
genius  and  culture,  600  ;  political  dis- 
couragements, 601  ;  decay  of  faith  and 


INDEX. 


6ll 


morals,  6oi,  602.  Arc  the  institutions 
of  modern  society  self-sustaining  ?  602, 
603.  Can  morals  be  pure  without  reli- 
gion ?  603,  604.  Need  ot  religious  faith 
in  advanced  societies,  604,  605  ;  condi- 
tions of  prosperity  accordmg  to  Plato, 
605  ;  they  are  ineffectual,  ibid.  ;  reli- 
gious and  moral  forces  can  save  some 
states,  but  not  all,  606  ;  and  can  revi- 
vify others,  ibid. 

Deftmtions  of  rights,  131-137 ;  by 
Paley,  131  ;  Abicht,  ibid.;  Lieber,  ibid.  ,■ 
Von  Rotteck,  ibid.  ;  Zachariae,  132  ; 
Whewell,  132  ;  Roder,  133  ;  Ahrens, 
134.  13s;  Stahl,  13s,  136;  Trendelen- 
burg, 136  ;  Lorimer,  136,  137. 

Democracy,  Aristotle  on,  466,  467,  ^  154  ; 
definition  of,  ii.  102  ;  distinction  between 
form  and  spirit,  ibid.  ;  democracies  with 
a  great  number  of  slaves,  ibid. ;  those 
where  suffrage  is  restricted,  103  ;  some 
politics  of  doubtful  nature,  ibid. ;  city- 
democracies,  their  advantages  as  to 
education  of  citizens,  104  ;  as  to  politi- 
cal value  of  citizens,  ibid.  ;  disadvan- 
tages of,  105.  Demagogues  in  democ- 
racies, 106  ;  moderating  principles  in 
modern  democracies,  a  constitution, 
107;  a  representative  system,  108;  its 
advantages,  108,  109  ;  feeling  of  trust, 
ibid. ;  temptation  of  representatives, 
109,  no;  modern  limits  on  special 
legislation,  110,  iii.  French  democ- 
racy, lis;  democracy  in  United  States, 
n6,  117.  Eligibility  to  office  in  democ- 
racies, 117.  Representation  and  suf- 
frage in  democracies,  116,  n8.  Extreme 
democracy,  its  marks,  1 19-122  ;  Athe- 
nian democracy,  ^  201  ;  Solon's  re- 
forms, the  seisachtheia,  123  ;  the  sen- 
ate, 124  ;  subsequent  democratic  insti- 
tutions, 125-138.  See  Athens.  Mod- 
ern democracy  in  France  and  United 
States,  138-145.  Practical  ends  in  the 
latter,  139  ;  few  changes  made  by  the 
revolution,  140;  greater,  since.  141, 
142  ;  doctrine,  its  sway  in  France,  ibid.  ; 
logical  equality  of  political  rights  there, 
143;  contrasted  with  United  States, 
ibid.  :  perils  of  democracies  from 
changes  in  society,  144,  145. 


1  Departments  of  government,  290;  1^98, 
ii.  259-347.  Necessity  of  division  of 
power,  259  ;  which  is  supreme  ?  260, 
261;  their  essential  differences,  262; 
independence,  262,  263 ;  yet  not  entire 
separation,  263,  264  ;  danger  of  conflict, 
264,  265.  E.xecutive  departments,  266- 
288  ;  legislative,  288-326;  judicial,  327- 
347.  See  K.\ecutive,  Judicial,  Legisla- 
tive. 

Dieke,  a.  W.,  on  the  Russian  7nir,  ii. 
389.  390- 

Dio.vvsius  of  Halicarnassus,  on  mixed 
governments,  471  ;  on  Roman  colonies, 
ii.  151. 

DisrosiTioN  testamentary.  See  Testa- 
ment. 

Divisions  of  rights,  36,  37. 

Divorce,  100-102. 

DokimasijE  at  Athens,  ii.  130. 

DoNATiSTS,  their  protest  against  the 
state's  use  of  force  in  matters  of  opin- 
ion, ii.  473. 

Dutch  United  Provinces,  ii.  223-236. 
Utrecht  Union,  223-235;  defects  of  this 
instrument,  226,  227  ;  Duke  of  .\njou, 
as  general  stadtholder,  fails  and  resigns, 
227;  William  of  Orange  stadtholder  in 
Holland  and  Zeeland,  ibid.  ;  Earl  of 
Leicester  general  stadth.,  ibid.  ;  diffi- 
culties preventing  entire  union,  227- 
229  ;  M.aurice  stadtholder  in  Holland, 
Zeeland,  elsewhere,  229;  religious  dis- 
putes, 230 ;  William  ibid.  ;  this  of- 
fice vacant,  ibid.  ;  John  De  Witt,  the 
perpetual  edict,  231,  232  ;  William  of 
Orange  (III.  of  Engl.and),  stadth..  232, 
233  ;  office  again  vacant,  233  ;  restored 
and  made  hereditary,  ibid.  ;  destruction 
of  the  republic,  234;  remarks  on  the 
constitution,  234,  235  ;  M.  Passy's  com- 
parison of  Swiss  and  Dutch  rejjublics 
and  their  destiny,  235,  236. 

Duties  not  the  origin  of  rights,  31. 
Duties  of  individuals  towards  parties, 
390. 

DirvERGlER  d'llaurane  on  the  way  to 
elect  the  chief  magistrate  in  France,  ii. 
272-275. 

Early  institutions,  431-465. 


6l2 


INDEX. 


Eaton,  D.  B.,  on  the  evils  of  city  gov- ' 
ernments,  especially  on  police  courts, 
ii-  379- 

Education  by  the  state.  Aim  of  ancient 
states  in  educating  children,  226;  idea 
of  such  education,  227  ;  Athens  neg- 
lected public  education,  ibid.;  medieeval 
states  neglected  it,  ibid.  ;  right  and  duty 
of  state  to  see  to  it  that  children  are 
educated,  227,  228  ;  higher  learning  and 
sesthetical  culture,  how  far  a  state  con- 
cern, 228 ;  the  state  not  to  have  the 
monopoly,  ibid.  ;  conflict  of  state  and 
religion  on  this  point  in  some  modern 
countries,  229,  230.  How  much  educa- 
tion should  be  imparted  ?  ii.  405 ; 
should  higher  places  of  learning  be  set 
up  by  the  state  ?  ibid. ;  practice  in  other 
countries,  405  ;  difficulties  from  secta- 
rian equality  in  this  country,  407  ;  the- 
ological science  must  be  excluded, 
40S  ;  so  morals  and  mental  philosophy  ; 
illustration  from  the  Dublin  Univ.  bill 
of  1873 ;  even  the  natural  sciences 
might  be  objected  to  by  the  sects,  ibid.  ; 
other  practical  difficulties  of  state  univ. 
in  this  country,  409, 410 ;  universities  and 
colleges  then  must  be  separated  from 
the  state,  409,  410  ;  state  may  support 
special  schools  in  the  arts,  410 ;  com- 
mon schools,  their  organization,  410 ; 
should  be  under  local  boards,  410,  411  ; 
the  Bible  in  schools,  411,  412  ;  infidel 
objections,  411  ;  Catholic  objections, 
ibid. ;  ought  to  have  weight,  412. 
Moral  training  in  schools  necessary, 
412  ;  Massachusetts  constitution  on  this 
subject,  413  ;  contrast  of  ancient  moral 
training  and  neglect  of  it  in  modern 
schools,  414. 

Elective  monarchies,  520-527.  See  Po- 
land, Hungary,  Germany.  Good  and 
evil  of  this  form  of  monarchy,  521. 
Election  within  a  certain  family  in  the 
Germanic  race,  527;  right  of  the  nation 
to  elect,  ibid.  ;  practice  of  such  election 
in  other  portions  of  the  Indo-European 
race. 

Emigration,  right  of,  384,  385. 
Encomienuas  in  Spanish  colonies,  ii. 
161,  162. 


English  dependencies,  government  of, 
ii.  164  ;  colonies,  163,  164. 

English  doctrine  of  revolution,  409-416. 

English  monarchy,  172-175.  Consti- 
tution not  separate  in  form  from  the 
laws,  545-547 ;  royal  power  in  Saxon 
England,  549  ;  policy  of  William  the 
Conqueror,  550 ;  royalty  under  the 
Norman  kings,  550-554  ;  and  afterwards, 
554.  555-  Powers  of  the  sovereign,  555, 
556,  and  limitations,  556-559.  Kings 
now  not  mere  pageants,  560.  Aristo- 
cratic element  in  E.  constitution,  561- 
565  ;  Saxon  nobility,  561  ;  great  coun- 
cil, 562  ;  house  of  lords,  563,  564. 
House  of  commons,  565-579.  See  Com- 
mons. 

Eh  FORI  of  Sparta,  nature  and  develop- 
ment of  their  office,  ii.  355. 
Epidemic  crimes.    See  Crimes. 
Equity,  118. 

Equality  of  rights,  what  ?  $13;  is  not 
equality  of  condition  or  of  property, 
304,  305  ;  claim  of  equality  of  property 
a  false  deduction  from  equality  of 
rights,  307.  Plans  of  equalizing  con- 
ditions by  limiting  amount  of  property. 
307-309. 

Ethics,  political,  382  ct  seq.  See  Cas- 
uistry. 

Evidence  admissible  in  courts,  347  ;  evi- 
dence of  slaves  in  Greece,  ibid,  n. 

Excuse  of  ignorance  of  law,  292. 

Executive  department,  ii.  266.  Can  tlie 
executive  powers  form  one  depart- 
ment ?  Unity  and  plurality  in  it,  as  in 
Athens,  Rome,  267,  268  ;  collegiality  at 
Rome,  268,  269  ;  two  kings  at  Sparta, 
269  ;  two  suffetes  at  Carthage,  ibid.  : 
two  kings  for  a  long  time  in  Japan, 
270 ;  modern  unity  and  interdependence 
of  executive  power,  270 ;  election  of 
cliicf  magistrate,  French  discussions 
on,  272  et  seq.  ;  English  race  proper 
one  chief  executive,  275,  276;  appoint- 
ments of  subordinate  officials,  different 
ways  of  making  them,  279-281.  Cabi- 
nets, 281-283.  Turning  out  subordi- 
n.ites,  283-286  ;  rules  suggested  to  limit 
this  practice,  286  et  seq. 

Exemptions,  special,  injustice  of,  276. 


INDEX. 


613 


Exile,  as  a  penalty,  not  a  harsh  one  now, 
376;  with  hard  labor,  etc.,  377. 

Expiation  as  a  ground  of  punishment 
considered,  332. 

Ex  POST  facto  laws,  293. 

Family  communities,  90-95. 

Family  rights  enumerated,  84 ;  their  vast 
importance,  84,  85  ;  blend  jural  and 
moral  considerations,  85.  See  Marriage, 
Polygamy,  Divorce,  Parental  Power. 

Feudal  monarchy,  528-535  ;  feudal  sys- 
tem,its  nature,  529 ;  beneficia,  vassalage, 
exemptions,  ibid.  ;  exemptions  or  im- 
munities, 520,  521  ;  broke  up  the  old 
counties,  532;  put  jurisdiction  in  great 
landholders'  hands,  ibid. ;  theory  of 
king,  as  proprietor  of  the  soil,  533  ; 
rights  of  vassals  over  their  vassals,  534 ; 
how  the  kings  broke  up  the  system, 
535;  weakness  of  feudal  states,  ibid. 

FiciiTE  (the  elder)  on  the  right  of  revo- 
lution, 419. 

FiL.MER,  Sir  R.,  his  patriarchial  theory  of 
the  state,  166  ;  refuted  by  Locke,  ibid. 

Fines  for  offences,  damnum,  mulcta,  361, 
362. 

Flint,  Prof.  R.  ,on  Montesquieu,  170, 
171  ;  on  a  theory  of  Cousin,  143. 

Florf.nce,    institutions    of,   ii.  60-95; 
early  Florence,  60  ;  as  a  commune,  60, 
62,  63  ;  relations  in  theory  to  the  em- 
peror,  6r ;   divided  jurisdiction,  62  ; 
classes  of  inhabitants,  63  ;  early  law%, 
ibid.  ;  the  Podestd,  64,  65  ;  quarrels  of 
Guelphs  and  Ghibellines,  65,  66,  67,  ct 
seq.  ;  //  prima  popolo,  67,  68,  et  seq.  ; 
the  capitano,  68  ;  victory  of  the  Ghibel- 
lines, 69 ;  the  two  podestis,  ibid.  ;  the 
arts  or  guilds,  69,  70  ;  the  thirty-six,  70  ; 
the  Guclphic  party,  71  ;  the  fourteen, 
ibid.  ;  the  priors,  72  ;  the  inferior  guilds,  i 
73  ;  ordinances  of  justice,  73-75  ;  the 
gonfalonier  of  justice,  75  ;  priors"  coun-  ' 
oil,  or  collei^i,  76  ;  contests  of  parties,  I 
77. 78 ;  councils  and  reform  in  them, 
78  ;  way  of  doing  business  in  councils, 
79;  s'/iiillinio.  80;  the  divieto,  81  ;  the 
Duke  of  Athens,  81,  82;  final  loss  of: 
power  by  the  grandi,  82  ;  plans  of  the  [ 
Guelphic  leaders,  82,  83  :  ,/w/w, ////-,■,  84  ;  ' 


tumult  of  the  ciompi,  ibid.  ;  Michael 
Lando,  changes  in  favor  of  lower  guilds, 
85;  reaction,  86;  Maso  degli  Albizzi 
and  the  Ottimati,  87,  88  ;  Rinaldo  degli 
Albizzi,  his  government  of  Florence, 
88,  89 ;  procures  the  banishment  of 
Cosimodei  Medici,  89;  is,  himself,  ban- 
ished with  his  leading  partisans,  89  ;  the 
sway  of  the  Medici,  90-92  ;  new  consti- 
tution and  the  great  council,  92  ;  over- 
throw of  republic,  93  ;  Florence  not  a 
democracy,  but  an  aristocracy  ending 
in  oligarchy,  93,  94  ;  the  buliu,  the  pur- 
Limento,  cap.  89,  90,  94 ;  citizens'  rights 
taken  away,  73-75,  89,  94 ;  want  of 
balance  in  the  constitution,  94  ;  activity 
in  arts  and  social  life,  94,  95. 

Foreigners  and  ihcir  children,  relation 
of  to  their  adopted  country,  385. 

Form  of  government,  no  one  alone  indi- 
cated by  theory,  288 ;  depends  on 
character  of  people,  etc.,  289.  Division 
of  forms  made  by  Aristotle,  466,  467  ; 
by  Plato,  467 ;  by  Polybius,  468,  469 ; 
by  Montesquieu,  473.  Simple  and 
mixed  forms,  470,  471.  Spirit  of  govts., 
478  ;  Aristotle's  subdivisions,  479- 
483.  Other  divisions  within  the  same 
polity,  483,  484.  Divisions  in  the  pres- 
ent work,  485,  486.  See  Monarchies, 
Aristocracies,  Democracies,  Compound 
Forms,  Confederations  ;  also  England, 
Dutch  United  Provinces,  etc. 

France.  French  empire,  509,  510. 
French  democracy,  ii.  138,  142.  See 
Democracy.  Central  administration 
and  government  of,  368-371. 

Franqueville,  Ct.  de.  on  constitution 
of  French  municipalities,  etc.,  ii. ,  381. 

Frank  pledge.    See  Responsibility. 

Freedom,  a  general  term  for  all  or  most 
rights,  33. 

Frkeman,  E.  A.,  on  representation  of 
small  places,  297 ;  on  confederation, 
ii.  167  ;  on  the  Achaean  league,  182- 
192,  passim  ;  on  the  Lycian  league, 
193- 

Free  speech,  right  of,  110;  in  collision 

with  right  of  reputation,  112. 
FusTKL  dc  Coulanges,  on  religions  of 

early  tribes,  460. 


6i4 


INDEX. 


Germany  or  Germanic  body,  monarchy 
in,  becoming  elective,  522;  German 
confederations  and  empire,  ii.  j  209 
(194-208);  disintegration  of  the  empire, 
194  ;  constitution  after  the  peace  of  | 
Westphalia,    195-197 ;     confederation  j 
broken  up  in  1806,  197  ;  reviewed,  197,  j 
198  ;  final  act  of  1820,  199-201  ;  consti- 
tution of  1849,  201  ;    old  constitution  I 
restored,    ibid.      Difficulties   between  j 
Prussia  and  Austria,  202  ;  North  Ger-  1 
man  confed.  of  1867  and  new  German 
empire,  1871,  204-206  ;  nature  of  these 
constitutions,  206,  207. 

Geyer,  Prof.,  on  punishment  and  crimi- 
nal law,  cited  65,  347  and  elsewhere. 

GlESLBRKCHT,  his  history  of  the  German 
empire  (in  German)  cited,  534. 

GiRAUn-TEULON,    on    primitive  mar- 
riage, 95. 

GLAUbTo.Ni;,  W.  E.,    on   relations  of 
church  and  state,  494-497.    The  state 
has  a  moral  office,  494  ;  for  discharging 
which  religion  is  necessary,  494  ;  reli- 
gion ought  to  pervade  common  or  family 
and  state  life,  as  well  as  individual  life, 
495  ;  it  must  worship  God,  ibid. ;  it  is 
competent  to  promote  the 
religion,  ibid. ;  evils  of  more  than  one 
establishment,  496  ;    objections  to  his 
view,  496,  497. 
Greek  conquerors  of  Asia,  their  prov- 
ince and  cities,  ii.  150,  151. 
Grotius,  on  justice  and  right,  127  ;  on 
the  state,  152-157  ;  on  nature  and  end 
of  penalties,  344,  345. 
Guilds  at  Florence,  ii.  69,  70,  73,  85, 
etc. 

Guizot  cited,  on  communistic  schemes, 
318  ;  on  the  English  parliament,  571  ; 
on  the  delicacy  of  federal  governments, 
ii.  172  ;  on  two  legislative  chambers, 
309. 


Hallam,  H.,  often  cited  on  the  English 
constitution,  as  569,  575,  576 ;  on  sup- 
pression of  monasteries,  ii.  417. 

Hari.Ess,  G.  G.  a.,  on  extent  of  obedi- 
ence to  law,  420. 

Hartk.nstein,   on  the  explanation  of 


penalties  made  by  Grotius,  346;  his 
own  theory,  347,  348. 
Health,  right  and  duty  of  the  state  to 
legislate  concerning  it,  212,  219,  222  ; 
care  of,  or  sanitary  police,  ii.  397,  398, 
needed  in  towns  especially,  397 ;  prac- 
tice of  appointing  public  physicians  in 
Egypt,  Greece,  Rome,  397  ;  hospitals 
for  the  sick  poor  in  Christendom,  398; 
principal  duties  of  sanitary  officers, 
ibid. 

Hebrews.  See  Israelites. 
Hermann,    K.    F.,  his   lehrbuch  v. 

Greich.  antiq.,  often  cited. 
Hegel,  on  penalties,  347. 
Helps,  A.,  on  Spanish  colonies,  ii.  161, 
162. 

Hildebrand,  his  Gesch.  d.  rechtsphilos. 
cited,  26. 

HiPPODAMUS  of  Miletus,  his  social  sys- 
j     tem,  310. 

HoBBKS,  on  justice,  127  ;  his  Leviathan 
j  and  de  Give,  157  ;  his  theory  of  the 
I  state,  157-161  ;  his  remarks  on  religious 
J     power,  160. 

Holding  office,  is  it  an  obligation  for  a 
I     person  elected  ?  388. 
ends  of  j  Honor,  its  relation  to  rights,  29;  under 
what  polity  it  thrives  best,  ii.  523-525. 
Hooker,  R.,  derives  the  ruler's  power  by 
compact  from  the  choice  of  a  nation. 
155,  156 ;  his  explanation  of  the  con- 
nection between  church  and  state,  ii. 
475-481.    See  Religion. 
Hu.mbolut,  W.  von,  on  limits  of  state 

action,  245-249. 
Hungary,  changes  in  form  of  govern- 
ment, 524-526  ;   becomes  united  with 
Austria,  52b. 
HuRLBUT,  on  rights  and  their  political 
guarantees,  cited,  285. 

Janet,  Paul,  cited  on  Montesquieu,  re- 
ferred to,  171,  on  Mabiy  and  Morel- 
ly,  312,  313. 
Japanese  monarchy,  502. 

Ignominy  or  loss  of  civil  rights,  one  or 
more,  at  Rome,  366  ;  at  .Athens,  367  ; 
useful  as  a  penalty  for  certain  crimes, 
368. 

Illinois,  the  state  of,  restrictions  in  its 


INDEX. 


615 


new  constitution  on  legislative  power, 
ii.  110,  III  ;  limitations  of  municipal 
and  county  power,  374,  377. 
Imperial    despotism    in    Rome  and 
France,  504 ;  founded  on  sovereignty 
of  the  people,  504,  505  ;  principatc  of 
Augustus,  Hid. ;  laws  conferring  au- 
thority on  the  emperors,  506,  507  ;  pow- 
er of  senate  in  early  empire,  ibid.  ;  later 
empire,  508,  509 ;  in  France,  509,  510. 
Imprisonment  as  a  penalty  little  used 
by  the  ancients,  363  ;  common  in  mod- 
ern times,  ibid.  ;  its  possible  evils,  364. 
India,  government  of  British,  ii.  164,  165. 
Indians,  or  rcdmen  of  North  America, 
their  totems,  445  ;  clans  and  marriage, 
445  ;  confederacies,  446. 
Ini"ll;knci;s  of  different  politics  on  na- 
tional character,  ii.  519-538.  Montes- 
quieu on  nature  and  principle  of  poli- 
ties, 519,  520. 
Institutions,  early,  434-461.  .Summary 
in  regard  to  them,  461-463.  Institutions, 
political  or  religious,  ii.  348-365.  Spe- 
cial sense  of  this  term,  348,  349;  their 
political  importance,  350 ;  growth,  350, 
351  ;  institutional  nations,  351,  eras, 
ibid.;  polities,  352.    Religious  I.,  352, 
353  ;  'wo  types  of  I.,  Lieber's  and  Ar- 
nold's definitions,  353,  354  ;  effects  of 
I-  •  355  ;  permanence  of  bad  as  well  as 
good  I.,  ibid.;  illustrations,  ephors  of 
Sparta,  355 ;  tribunes  of  Rome,  356 ; 
the  major  domus,  357-359 ;  French  par- 
li.imcnt,  360-363  ;  pensionaries,  as  in 
Holland,  363-365  ;  benefits  of  I.,  365. 
Institutions,  municipal.  See  Municipal. 
International  law  implied  in  the  ex- 
istence of  states,  199  ;  but  separated  as 
a  distinct  branch  of  study  by  its  posi- 
tive character,  200. 
International  association,  the,  319. 
ISOCUATBS,  on  two  kinds  of  equality,  28. 
Israbi.ITES,  land-tenure  among  the,  309  ; 
tribal  and  other  institutions  of,  453-455  ; 
theocratic  institutions,  497-499  ;  church 
and  slate  among,  ii.  441 ;  humanity  of 
their  laws,  432,  433. 

Judicial  department,  ii.  327-346.  Na- 
ture of  a  judge's  ofTice,  327  ;    early  | 


judges  united  other  offices  with  this, 
ibid.;  judicial  systems  in  certain  na- 
tions, 328,  329;  judges  not  representa- 
tives of  kings  or  people,  330 ;  their 
office  highly  moral,  330,  331 ;  must  be 
without  biases,  331  ;    protect  public 
order  against  the  executive  and  legis- 
lative departments,  331,  332;  protect  a 
country  against  unconstitutional  laws, 
332, 333  ;   apply  old  principles  to  new 
cases,  334  ;  advantage  of  this,  334,  335  ; 
can  apply  rules  of  equity,  335.  Grada- 
tions in  a  judicial  system,  336.  The 
jury,  337-341.  See  Jury.  .Appointment 
of  the  judge,  341  ;  should  not  be  by 
popular  election,  342 ;  his  term  of  office, 
343  ;  superannuation,  ibid.;  salary,  344; 
short  terms  of  office,  345  ;  evils  of  short 
terms,  ibid.    The  advocate,  as  a  part 
of  the  judicial  system,  346. 
Jury.    Dikasts  of  Athens,  their  office, 
ii.  337  ;  jury  a  check  on  the  judge  in 
our  system,  339  ;  advantages  of  juries 
in  educating  a  people,  338  ;  is  to  judge 
of  facts,  339  ;  evils  in  requiring  una- 
nimity, 340;  unwilling  to  serve  on  ju- 
ries, ibid.  ;  size  of  juries,  341. 
Jus,  jural,  what  and  how  related  to  mor- 
als, 4,  7,  14-21.    Comp.  Rights,  Obliga- 
tion.   Jural  science  progressive,  26. 
Justice  and  rights,  32.    Nature  of,  ac- 
cording to  Plato,  120;  .-\ristotlc,  121  ;  the 
Stoics,  124  ;  Cicero,  ibid.  ;  the  Roman 
lawyers,  125  ;  German  and  Christian 
views  of,  126  ;  view  of  Grotius,  127 ; 
Hobbes,  ibid.;  Pufendorf, /*/,/.,•  Tho- 
niasius,  ibid.;    Locke,  Kant,  Hegel, 
128  ;   English   utilitarians,  especially 
Mr.  Austin,  129-131  ;    Mr.  J.  F.  Ste- 
phen, on  their  view,  129. 
K.\l-"l-RES,  their  form  of  government,  449. 
Kalmuks,   their  form   of  government, 
443- 

Kant,  E.,  on  rights,  23;  on  justice, 
128  ;  on  departments  of  state,  292  ;  on 
penalties,  and  especially  the  lex  tal.o- 
nis,  346  ;  on  the  right  of  revolution,  417. 

Kl.NGS  in  early  societies,  441  ;  as  judges, 
ibid. 

Kroomf.n,  their  forms  of  government, 
448. 


6i6 


INDEX. 


Lange,  L.,  on  the  Roman  constitution, 
ii.  24,  26,  28  et  alibi. 

Laveleye,  E.  de,  on  village  and  family 
communities,  53 ;  on  the  Russian  niir, 
ii.  390  ;  on  election  of  chief-magistrate  j 
by  popular  vote,  271,  272  ;  on  choosing  1 
part  of  a  ministry  by  a  legislature, 
287  ;  on  minority  representation,  293  ;  I 
on  method  of  electing  two  legislative  , 
chambers,  309  ;  on  Belgian  communes,  ' 

387. 388.  ! 

Legislative  department,  ii.  287-326;  ! 
relations  of  the  representative,  ii.  290;  | 
small  electoral  districts  necessary,  291, 

292  ;  can  interests  be  represented  ?  292, 

293  ;  minority  representation,  293-295  ; 
the  cumulative  plan,  294  ;  Prof.  Craik's, 
ibid.  ;  Mr.  Bailey's,  ibtd.  ;  Mr.  Hare's, 
295.  Direct  and  indirect  elections,  295- 
301 ;  evils  of,  296  ;  election  of  President 
in  the  U.  S.,  not  strictly  election,  297; 
universal  suffrage  brings  with  it  a  kind 
of  double  election,  298 ;  Courcelle 
Seneuil  on  indirect  election,  299,  300  ; 
general  remarks  on  indirect  election, 
300  ;  J.  S.  Mill  on  ditto,  301 ;  number  of 
chambers,  ibid.  ;  two  by  histori'^al  acci- 
dent in  the  English  system,  301  ;  pre- 
ferred by  the  .'\nglican  race,  302 ;  num- 
ber in  France,  303  ;  in  Sweden,  ibid.  ; 
in  Norway,  ibid.  ;  composition  of  the 
more  popular  house,  303,  304 ;  the  dis- 
tricts need  not  be  exactly  equal,  304  ; 
size  of  the  popular  house,  305  ;  districts 
ought  to  be  able  to  choose  persons 
from  outside,  306.  Composition  of 
upper  house,  in  England,  307  ;  in  the 
U.  S.,  308;  must  this  house  represent 
wealth  and  capital  ?  309,  310  ;  are  two 
chambers  part  of  an  aristocratic  sys- 
tem ?  310 ;  differences  of  functions  of 
two  houses,  311  ;  advantages  of  two 
chambers,  312,  313;  composition  of 
upper  chamber  as  proposed  by  Mr. 
Mill,  314;  limitation  of  legislative  com-  | 
petence,  318.  Time  of  holding  office, 
319  ;  length  of  sessions,  ibid. ;  power  of 
executive  to  dissolve  the  legislature  or 
estates,  tbid.  ;  the  veto,  superseded  in 
England,  320;  absolute  veto,  qualified, 
as  in  our  constitutions,  321  ;  suspensive,  1 


as  in  Norway,  ibid.  ;  varying  plans  in 
French  constitutions,  321,  322  ;  the  veto 
not  a  legislative  act,  but  a  check  on 
legislation,  ibid.  ;  abuse  and  use  of  it 
among  us,  323  ;  compensation  to  mem- 
bers of  a  legislature,  323  ;  Mr.  Mill  and 
Prof.  Lorimer  against  this,  324.  Nomi- 
nation for  legislative  office,  325  ;  privi- 
leges of  members,  ibid.  ;  rules  of  order, 
326  ;  power  of  arrest,  ibid. 

Le  Maistre,  on  the  state,  149. 

Leo,  Prof.  H.,  on  the  Dutch  act  of  abju- 
ration, ii.  226. 

Liberty,  what  ?  j  18  ;  its  conflict  with 
equality,  303. 

Lieber,  Dr.  F.,  on  rights,  131  ;  on  insti- 
tutions, ii.  353,  354  ;  on  two  chambers, 
302. 

Life,  limb,  locomotion,  personal  safety, 
rights  of,  38-41  ;  right  of  life  cannot  be 
waived,  39. 

Limited  monarchies  and  mixed,  their 
nature,  518-520. 

Limitation  of  amount  of  penalties, 
360  ;  on  pardoning  power,  381  ;  of  time 
for  prosecutions  for  crime,  381  ;  on  leg- 
islative power,  ii.  iii  ;  of  the  state  s 
powers,  especially  those  proposed  by 
W.  v.  Humboldt  and  J.  S.  Mill,  249- 
260  ;  examination  of  their  views,  261  ; 
difficulty  of  adjusting  these  limits,  263  ; 
just  limits  and  liberties  of  a  people  con- 
sidered, 264  onw. 

Liturgi/E  at  Athens,  ii.  135. 

Local  government  and  self-government : 
two  plans,  central  and  local  government, 
ii.  366  ;  instinct  of  a  free  people  to  allow 
self-government,  ibid.  ;  despotic  plan, 
367  ;  union  of  a  general  with  local  tlie 
true  plan,  ibid.  ;  central  and  distributed 
power,  367,  368  ;  De  Tocqueville  on 
central  government  and  central  admin- 
istration, 368. 

Locke,  on  rights,  128;  on  the  state,  167, 
168  ;  on  revolution,  414. 

Locomotion,  right  of,  40  ;  its  relation  to 
property,  50  ;  the  state  aids  this  right  by 
roads,  ferries,  and  bridges,  ii.  399-401. 

Lords,  house  of,  in  England,  561-564. 

Lot  at  Athens,  ii.  126;  at  Florence,  ii. 
79,  80.    Comp.  Florence,  Squittinio. 


INDEX. 


617 


LoRlMER,  Prof.  J.,  on  rights,  136, 137  ;  on 
payment  to  members  of  a  legislature, 
ii.  324. 

Loyalty  or  obedience  to  law,  obligation 
to,  386,  387 ;  limits  to,  394.  Comp. 
402. 

Mably,  his  Platonic  communism,  312. 

Macchiaveli.i,  his  principe,  150;  dis- 
courses on  Li\ y,  151  ;  principles  of 
state  policy,  ibid. 

Mackintosh,  Sir  J.,  on  natural  law,  3. 

MacLen'NAN,  on  primitive  marriage,  es- 
pecially on  exogamy  and  bride-steal- 
ing, 90,  91,  93,  94. 

Maine,  Sir  H.  S.,  on  village  communi- 
ties, 52,  59,  60  ;  on  territorial  sover- 
eignty, 144 ;  on  Montesquieu,  171. 

Major  domus,  or  mayor  of  the  palace, 
origin  and  growth  of  this  institution,  ii. 
357-359- 

MARQL'ARDTon  Roman  anti  juities,  cited, 
ii.  32,  153,  154,  156,  and  elsewhere.  | 

Markiagk,  begins  in  contract,  85;  ob- 
stacles to,  86  ;  prohibited  degrees,  87- 
90  ;  primitive  marriage,  recent  writers 
on,  90,  n. ;  statements  as  to  primitive 
usages,    community-marriage,    ibid.  ;  • 
polyandry,  91  ;  family  following  moth-' 
er's  kin,  92 ;  incest  common,  92  ;  en- 
dogamy,  e.xogamy,   bride-stealing  in 
early  times,  93,  94  ;  polygamy,  95-98 ; 
rights  and  obligations  of  a  married  pair, 
98-100 ;    divorce,    100-102 ;    rights  of  \ 
parents,  102-106;  the  child  not  prop- 
erty, 104  ;   Roman  patria  poleslas,  103,  ' 
104;  adoption,  106;  inheritance,  106- 
110.     See  Testamentary  Disposition. 
Roman  ijucrela   iiiofficiosi  Icstamcn/i.^ 
108;  intestate  succession,  109;  disin- 
herison, ibid.;  right  of  making  be- 
quests for  religious  and  other  purposes 
outside  of  the  family,  110. 

May,  his  constitutional  history  of  England 
c.ied,  547,  557, 558,  and  often  elsewhere.  | 

Mm.a.n,  tyranny  of  the  Visconti  and 
.Sforzas  there,  515-518.  | 

Mil.i,,  J.  S.,  on  limits  of  state  action,  or  I 
individual  liberty,  249-261 ;  remarks  on 
his  opinions,  261-263  ;  against  electing 
chief  magistrate  by  popular  vote,  ii.  I 


276-279 ;  against  indirect  elections, 
301,  n.  ;  on  the  composition  of  an 
upper  legislative  chamber,  312-315  ; 
on  election  of  subordinate  officials,  382  ; 
on  "representative  sub-parli.aments," 
324- 

MiLTOX,  on  the  right  of  revolution,  411- 
413- 

Mohammedan  monarchy,  504. 

MoMMSEN,  Thcod. ,  often  cited  ;  his  his- 
tory of  Rome,  ii.  24,  25,  28,  etc.  ;  his 
Rom.  Staatsr.,  28,  etc. ;  on  Roman  suf- 
frage, 13  ;  Roman  colonies,  152-154. 

Monarchy,  early,  441  ;  in  general,  487- 
586 ;  absolute,  especially  growing  out 
of  conquest,  495  ;  Theocratic,  497  (see 
Theocracies);  absolute  patriarchal,  501  ; 
Chinese,  ibtd.  ;  Japanese,  502  ;  Peru- 
vian, 503;  Mohammedan,  504;  Impe- 
rial despotism,  504-508  ;  later  Roman 
empire,  508,  509  ;  French  empire,  509, 
510  ;  tyranny  in  city-states,  Greek,  510- 
515  ;  in  Italy,  especially  at  Milan,  518  ; 
limited  and  mi.xed  monarchy,  518-520  ; 
elective,  520-527;  feudal  monarchy,  528- 
535  ;  mi.xed,  especially  Spartan.  536-543 ; 
English,  543-579.  See  English  Mon- 
archy. Constitutional  monarchy  and 
written  constitutions,  579-585, 

Montesquieu,  estimate  of  him,  168-171  • 
on  two  legislative  chambers,  ii.  309;  on 
sumptuary  laws,  435,  436;  on  the  spirit 
of  governments,  519-526  ;  on  influences 
from  climate,  514. 

Morals,  mor.al  and  jural  provinces,  4  ; 
moral  not  in  general  subject  to  human 
law  (see  Rights);  moral  legislation,  gen- 
eral rules  as  to,  232  ;  practically  con- 
sidered, ii.  422-438  ;  useless  to  decide 
whether  the  immoralities  are  so  in  them- 
selves or  by  reason  of  their  conse- 
quences, 422,  423  ;  ought  law  to  forbid 
that  which  hurts  only  the  person  com- 
mitting it?  425  ;  laws  concerning  broth- 
els, 426 ;  laws  concerning  spirituous 
liquors,  426-431  ;  reasons  for  prohibit- 
ing the  s.ile,  427  ;  can  such  laws  be  en- 
forced ?  428  ;  license  of  the  sale,  429  ; 
necessary  restrictions  on  the  sale,  430  ; 
claim  of  right  to  sell,  ibid.;  laws  con- 
cerning obscene  books  and  pictures, 


6i8 


INDEX. 


431 ;  laws  concerning  cruelty  to  ani-  ] 
mals,  431-433  ;  as  among  the  Hebrews,  | 
432.  433  ;  laws  against  gambling,  433  ;  j 
and  other  sports  attended  by  gambling, 
ibid.  ;  sumptuary  laws  common,  but  in-  j 
operative,  434,  435  ;  Montesquieu  does 
not  object  to  them,  unless  in  a  republic, 
436 ;  tariffs  in  the  interest  of  morals,  | 
436.  437 ;  is  moral  legislation  solely  i 
prohibitory  ?437  ;  remarks  on  punishing  j 
ingratitude,  438.  1 

MoRELLY,  his  communism,  313. 

MORET  y  Prendergast,  on  the  municipal  j 
system  of  Spain,  ii.  388,  389.  1 

MoRiER,  on  the  Prussian  rural  com- 
munes, ii.  389. 

Motley,  J.  L.,  on  the  Dutch  abjuration 
of  allegiance  to  Philip  II.,  ii.  226,  n.  2, 
cited,  ibid.,  n.  I.  j 

MaNiciPAL  and  rural  government,  cen-  ^ 
tral  and  self-government  compared,  ii. 
371-373  ;  city  government  should  be  for  ' 
all  cities  on  the  same  plan,  374  ;  diffi- 
culties in  city  government,  375  ;  amount 
of  power  to  be  given  to  cities,  376  ;  rules 
in  Illinois  and  Pennsylvania,  374-377  ; 
who  ought  to  vote  in  city  elections  ? 
378 ;  especially  for  raising  ta.xes ,  379  ; 
elections  of  chief  officers,  380  ;  choice  of  j 
mayors,  etc.,  in  England,  381  ;  of  city-  ' 
councils  there,  ibid.  ;  best  way  of  elect- 
ing in  the  United  States,  382  ;  mode  of 
election  in  France,  381.    Government  \ 
of  rural  communities,   383 ;  in  New  j 
England,  384,  385  ;  in  New  York  and 
some  other  states.  386  ;  powers  of  super-  j 
visors,  ibid.  ;  importance  of  the  county 
in  this  system,  ibid.  ;  town  and  parish 
systems  giving  way  in  England  to  new 
boards.  387  ;  government  of  communes  ' 
in  Belgium,  »i;a'.  /  municipal  system  in 
Spain.  388,  389  ;  rural  communities  in 
Prussia,  389  ;    the  Russian    mir,  389, 
390  ;  county  government,  390,  391.  ] 

Nf.w  Ze-^land,  its  government,  451. 

Natural  V,\yi,jus  naturale,  law  of  na- 
ture and  nations,  definition  of  by  Gro- 
tius,  3 ;  by  Macintosh,  ibid. 

Nobility.  See  Aristocracy. 


Norway,  the  storthing  divides  into  two 
parts,  ii.  303. 

Obedience  to  law,  386.    See  Loyalty. 

Obedience  to  magistrates,  its  limits,  387. 
Office,  no  right  of  holding,  299. 
Obligation,  correlative  to  rights,  \o- 

14;  prohibitory,  16.    See  Rights. 
Opi.nions  on  justice,  rights,  and  natural 

law,  120-137. 
Opinio.s',  public,  its  relation  to  penalties, 

379 ;  ought  to  be  controlled  by  the 

state's  opinion,  380. 
Oracle  at  Delphi,  its  theocratic  control 

in  Greece,  500. 
ORG.VNi^iATlON  of  a  state  generally  not 

of  human  forethought,  282. 
Ostracism,  ii.  127. 

P.^ley,  W.  on  rights,  131. 

Paruo.ns  sometimes  necessary,  380  ; 
abuses  of,  ibid.;  limitations  on  power 
of  granting,  381. 

Parliament.  Origin  and  use  of  the 
word,  ii.  62,360;  P.  of  England,  i. ,  561- 
579.  House  of  lords,  561-565.  H.  of 
commons,  its  origin  and  growth,  565 
and  onw.  ;  union  of  knights  of  shires 
and  representatives  of  burgesses  to  form 
it'  565.  566  ;  this  union  in  a  degree  ac- 
cidental, 566 ;  burgesses  at  first  weak, 
566 ;  importance  of  statute  of  annual 
parliaments,  567  ;  violation  of  this  rule 
by  the  kings.  567,  568 ;  power  of  grant- 
ing or  refusing  supplies,  568  ;  right  of 
petition,  569;  out  of  this  grew  right  of 
legislation,  569.  570;  political  power 
of  P.,  as  to  depose  kings,  571 ;  to  decide 
who  was  rightful  sovereign,  572  ;  jeal- 
ousy of  churchmen,  573 ;  judicial  pow- 
ers of  P.,  574;  privileges  of  P.,  575. 
576.  No  early  uniformity  at  first  in 
summoning  members  of  house  of 
commons,  576;  inequalities  of  repre- 
sentation. 577  ;  aristocracy's  influence 
in  returning  members  of  commons, 
578  ;  reforms  of  1832,  578  ;  omnipotence 
of  P. ,  578-579- 

Parliaments  of  France,  esp.  P.  of  Paris, 
ii.  360-363.  A  judicial  body,  an  off- 
shoot ot  the  king's  curia  or  council, 


INDEX. 


619 


360,  361.    Its  powers,  361 ;  other  par-  | 
liaments  added,  ibtd.;  quasi-political 
power  of  P.  of  Paris,  361 ;   refusal  to 
register  ordinances,  ibid. ;  bed  of  jus-  1 
tice,  362.  I 

Parties,  duties  of  private  citizens  to-  j 
wards,  390-393.    Nature  of  parties,  ii. 
542-558 ;  no  proper  parties  in  despot- 
isms, 543  ;  none,  where  force  is  used 
instead  of  argument,  ibid.  ;  depend 
on  constitutional  freedom,  544 ;  slow 
progress  of  parties  in  countries  where 
the  court  has  the  power  in  its  hands, 
545  ;  parties  with  a  number  of  princi-  ' 
pies,  ibid. ;  with  one  principle,  546 , 
power  of  religious  differences  in  con- 
stituting   parties,  547;    third  parties 
and  independent  members  in  legisla- 
tures, 548 ;  open  questions,  how  far 
ought  they  to  be  allowed  within  a 
party  ?  549 ;  doctrine  and  practice  of, 
inconsistent,  550  ;   duration  of  parties,  I 
ibid.  ;  names  of  parties  last  after  their  | 
extinction,  551 ;  parties  within  parties, 
553  ;  what  are  and  what  are  not  party 
questions,  554  ;   influence  of  historical  , 
events  on  parties,  555  ;  parties  in  de-  | 
mocracies,  556,  557  ;  violence  of  parties,  I 
557 ;  allegiance  to  parties,  ibid. 
Pahtif.s  in  the  United  States,  ii.  558-567. 
They  pervade  the  country,  558 ;  but 
may  be  opposed  by  local  parties,  ibid.  ; 
sketch  of  parties  since  the  constitution 
was  formed,  558,  559  ;   narrowness  of 
party  lines,  559  ;  the  weaker  party  may 

'  have  the  administration  in  its  hands, 
ibid. ,  personal  power  of  the  presi- 
dent and  his  relations  to  the  senate, 
559.  5*^ ;  power  of  senate  in  refusing 
to  confirm  nominations  leads  to  com- 
promises, 561  ;  removals  from  office  on 
party  grounds  unknown  at  first,  561, 
562  ;  political  organization  of  the  coun- 
try, 562  ;  management  through  subor- 
dinate leaders,  especially  of  naturalized 
citizens,  562,  563  ;  means  of  selecting 
candidates  for  office,  563,  564  ;  self- 
nomination,  564;  universal  suffrage,  I 
565;  politics  m  large  towns,  566;  are 
third  parties  of  use  ?  566,  567  ;  results 
from  the  refusal  ot  the  best  men  to  vote 


for  bad  men  nominated  by  third  parties, 
567  ;  benefits  from  self-nomination. 
Passy,  H.,  on  Swiss  constitutions,  ii.  210  ; 
Swiss  and  Dutch  republics  compare  as 
to  permanence,  236. 
Patent  right  and  law,  43  ;  ii.  404. 
Pay  of  dikasts  at  Athens,  and  of  citi- 
zens in  the  ecclesia,  ii.  133,  134  ;  its 
effects,  134  ;  of  members  of  English  h. 
of  commons  at  first,  i.  576,  577  ;  now 
no  pay  given  to  them,  nor  in  France 
nor  the  German  empire,  ii.  323  ;  J.  S. 
Mill  and  Lorimer  on  such  pay,  324. 
Penal  colonies,  364  ;  labor,  ibtd.  ;  in  the 

galleys,  in  France,  364. 
Pennsylvania,  restrictions  in  the  new 
constitution  of,  on  special  laws,  ii.  374; 
on  power  of  municipalities  to  borrow, 
377- 

Pensionaries  and  the  grand  P.  ;  ac- 
count of  this  institution,  ii.  363,  364. 
Peoi'i.e  of  a  state,  meaning  of  the  word, 
205. 

Persian  policy  in  governing  its  provinces, 
ii.  148-150. 

Peruvian  monarchy,  503  ;  its  extreme 

absolutism,  ibid. 
Ph.\LEAS,  his  plan  of  equalizing  proper- 
ties, 311. 

Physical  causes  affecting  governments, 
ii.  514-519 ;  Montesquieu's  merits 
in  that  department  of  enquiry,  514 ; 
climate,  515-517  ;  soil,  517  ;  situation, 
517,  518  ;  race,  518,  519. 
Pl.\to,  on  justice,  120;  on  slavery,  122  ; 
on  the  aim  of  the  state,  145  ;  on  the 
evils  of  slavery,  306 ;  his  communism, 
311;  on  penalty,  339-340;  on  political 
changes,  406;  his  kinds  of  states,  467; 
on  mixed  forms,  470  ;  on  the  Spartan 
ephoratc,  541,  n.;  on  two  kinds  of  equali- 
ty, 28  ;  on  revolutions  and  their  causes, 
406  ;  on  the  effect  of  p.iying  the  Athe- 
nians fordoing  political  duties,  ii.  134  ; 
on  public  religion  and  penalties  for  ir- 
religion,  470,  471  ;  on  the  decay  of 
states,  595. 
'oi.and,  under  hereditary  kings,  520; 
power  of  nobility  under  the  pi.osts,  523  ; 
under  the  j.igellons  almost  a  republic, 
ibid. ;  an  elective  monarchy  established, 


620 


INDEX. 


523,  524 ;  vast  power  of  the  nobility,  | 
idid. 

Police,  origin  and  meaning  of  the  term, 
235  ;  wide  and  narrow  senses,  236  ;  An- 
gUcan  sense,  ibid.  ;  agents  of  public  or- 
der in  different  states,  238,  239 ;  extent 
of  duties,  ii.  394  ;  mode  of  appointment, 
393  ;  responsibility  for  arrests,  396  ;  de- 
tective police  not  essentially  distinct 
from  preventive,  ibid.  ;  abuses  in  bar- 
gains of  private  persons  with  rogues 
through  detectives,  ibid. 

Political  changes,  causes  of  them,  568- 
575  ;  even  states  the  most  exclusive  ex- 
posed to  them,  568  ;  may  be  silent,  or 
open  and  manifest,  569  ;  known  to  an- 
cient writers  on  politics,  ibid.;  but  not  in 
the  form  of  spiritual  causes,  ibid.  Direct 
changes  as  example  from  abroad,  570; 
political  doctrine,  ibid.  ;  especially  doc- 
trine of  human  rights  and  equality,  570, 
571  ;  and  socialism,  571  I  changes  from 
opinion  creating  new  powers  in  society, 
especially  religion,  572  ;  or  decay  of  re- 
ligious faith,  573  ;  changes  by  accumu- 
lations of  capital,  573,  574  ;  illustration 
from  the  towns  in  feudal  times,  575 ; 
feudal  peasantry  unable  to  create  po- 
litical changes,  575. 

Political  crimes,  treatment  of,  378; 
punishment  milder  than  formerly,  379. 

Political  rights  of  individuals.  Equal 
justice,  266;  justice  of  bankrupt  laws 
and  statutes  of  limitation  considered, 
268-270  ;  justice  of  taking  land  for  pub- 
lic uses,  270  ;  right  of  petition,  270-272  ; 
freedom  of  speech  and  press,  272-274  ; 
equal  taxation,  275  ;  evil  of  special 
privileges  and  exemptions,  276  ;  liberty 
of  association,  277. 

Polities,  Aristotle's  work,  so-called,  433. 
Early  politics,  difficulty  of  determining 
what  they  were,  434. 

Polities  or  forms  of  government,  influ- 
ence of,  as  it  respects  their  spirit,  ii.  520- 
523;  especially  as  it  respects  the  princi- 
ple of  honor, 523-526.  Other  influences. 
Difliculty  in  separating  the  influence 
ol  the  polity  from  other  influences,  526  ; 
influences  from  the  ease  of  rising  in 
society,  527,  528 ;   from  the  spirit  of 


equality  and  the  opposite,  529  ;  from  the 
people's  habit  of  obedience  to  the 
laws,  ibid.  ;  the  desire  and  extension  of 
education,  530-532;  the  sway  of  public 
opinion,  532,  533  ;  the  kind  feeling  be- 
tween classes,  533,  534  ;  the  love  of 
display,  534  ;  patriotism  and  public 
spirit,  534,  535  ;  freedom  of  associating 
for  various  objects,  535,  536.  Character 
of  the  laws  in  different  polities,  537. 
Relations  of  polities  to  the  useful  and 
fine  arts,  538,  539  ;  to  the  learned  pro- 
fessions, 539-541- 
Poly Bi  us,  on  political  changes  and  their 
cycle,  406,  407  ;  on  forms  of  polity,  468  ; 
on  mixed  forms,  471  ;  on  the  constitu- 
tion of  Carthage,  ii.  40,  42  ;  on  the  union 
of  Peloponnesus  under  the  Achaean 
league,  ii.  190  ;  on  the  Achxan  league, 
passim. 

Polygamy,  contrary  to  the  idea  of  mar- 
riage, 95  ;  moral  evils  of,  96  ;  equality 
of  sexes  points  to  monogamy,  97  ;  great 
spread  of  polygamy,  96. 

Polynesia,  islands  of,  their  govern- 
ments, 450. 

POMEROY,  on  constitutional  law,  cited 
ii.  254;  on  states  in  the  United  States 
invalidating  contracts,  171. 

Poor  and  sick,  aid  to,  by  the  State.  See 
Public  Charity. 

Powers  or  forces  of  states  :  police,  235- 
240 ;  taxation,  240,  241  ;  war  power, 
241,  242. 

Practical  politics,  sense  of  the  expres- 
sion, 431  ;  uses  of  this  department  of 
the  subject  of  politics,  432  ;  limits  to  the 
uses,  ibid. ;  relations  to  history,  433. 
See  Polities,  Governments,  States, 
etc. 

Privileges,  special,  unjust,  276. 

Property,  right  of,  definition  of,  41,  42  ; 
qualified  property,  42,  43  ;  is  there  a 
right  of  property  ?  ^  24  ;  how  does 
proi^erty  begin  ?  25  ;  labor  and  occu- 
pation, 45,  46 ;  occupation  what,  46, 
47  ;  possession  in  Roman  law,  47  ;  gains 
on  occupation,  48  ;  the  lower  races  ac- 
knowledge a  right  of  jjroperty,  49 ; 
property  in  land,  $  26;  limitations  on 
right  of  property,  50,  51  ;  common  prop- 


INDEX. 


621 


erty  and  community  systems,  51-60 :  j 
common  property  still  property,  $  27 ;  | 
right  of  propftty  does  not  imply  pos-  I 
session  of  property,  $  28 ;  obligations 
correlative  to  property,  $  29;  right  to  I 
use   property,   62 ;    H.    Spencer  on 
property  in  land,  63-68 ;   Buchez  on 
ditto,  68-70  ;  summary,  71. 

Protection  of  industry,  by  security  of 
property,  ii.  403  ;  by  laws  facilitating 
association,  iiit/.  ;  by  patent  law  s,  404  ; 
but  a  protective  tariff  unequal,  ibid. 

Provinces,  government  of,  by  the  Per- 
sians, ii.  148-150  ;  Romans,  151-158  ; 
Spaniards,  160-163;  English,  163-165. 

Public  charity,  ii.  414-422 ;  support  of 
the  poor  a  duty,  not  a  right  of  theirs; 
414,  420  ;  deduciblc  from  humane  feel- 
ings, 414,  415  ,  relief  to  poor  among 
the  Hebrews,  415  ;  at  Athens,  ibid.  ;  at 
Rome,  415,  416  ;  spirit  of  Christianity 
in  this  respect,  416,  417  ;  false  views  of 
some  early  Christian  writers,  417  ;  prac- 
tice in  Middle  Ages,  ibtd.  ;  suppression 
of  monasteries  no  real  evil  to  the  poor 
in  England,  ibid. ;  English  poor  laws, 
418,  419  ;  Poor  Law  Act  of  43  Eliz., 
of  1662,  of  1795,  ibid.  :  reform  of  1834, 
419;  support  of  poor  in  United  States, 
420 ;  rules  for  aid  to  poor :  must  be 
given  as  a  favor,  not  as  a  right,  tbid. ; 
the  worthy  poor  must  be  separated 
from  the  unworthy,  and  have  better 
treatment,  420,  421  ;  private  charity 
should  not  be  superseded,  421.  The 
state  may  provide  hospitals  for  various 
maladies,  etc.,  422. 

PUFENDORF,  on  justice,  127. 

PUNISH.MENT,  how  differing  from  repara- 
tion, 324 ;  the  same  act  may  call  for 
both,  325  ;  its  incidence  variously  esti- 
mated, 325  ;  negligence  may  call  for 
it,  327 ;  not  the  same  as  chastisement, 
328.  Theories  ot  state's  punishing 
power,  328-337  ;  several  ends  named  in 
the  Scripture,  338 ;  Plato's  opinion, 
339;  Aristotle's,  340,  341;  Beccaria's, 
342-344  ;  that  of  Grotius,  344,  345 ; 
Kant's.  346  ;  Hegel's,  346  ;  Herbart's 
and  Hartcnstein's,  347,  348;  Slahl's, 
349 ;  Rothe's,  351  ;  Uentham's,  in  his 


rationale  of  punishment,  352,  353.  See 
Crime. 

Ravvlinso.v,  Prof.,  on  the  Persian  admin- 
istration, ii.  149,  150. 

Redress.  Is  there  an  obligation  to  re- 
dress others' wrongs?  116. 

Rei.n,  on  Roman  criminal  law,  358,  363, 
and  elsewhere. 

Religion  and  the  State,  their  relations. 
A  state  can  rightfully  establish  a  reli- 
gion, 223-236.  The  relation  practically 
considered,  ii.  439-513  ;  dithculties  in 
adjusting  the  relations,  ancient  and 
modern  opinion,  439 ;  importance  of 
the  subject,  ibid.  ;  three  classes  of  re- 
ligions, 440  ;  the  monotheistic  religions, 
their  peculiarities,  441  ;  complicated 
relations  of  Christianity  to  the  state, 
and  greater  difficulty  of  adjusting  them, 
442 ;  pagan  religions  having  slight 
connection  with  the  state,  their  pecu- 
liarities, 444-450 ;  religions  with  insti- 
tutions, as  Brahminism,  451  ;  the  Egyp- 
tian, ibid.  ;  the  Celtic  or  Druidical,  452  ; 
monotheistic  religions  :  Judaism,  its 
relations  to  the  state,  453  ;  yet  able  to 
subsist  elsewhere,  ibid. ;  religion  of 
Mohammed,  close  connection  with  the 
state,  454 ;  Christianity,  its  first  rela- 
tions to  the  state.  455  ;  its  growth  and 
development  when  disconnected,  ibid.  ; 
its  power  of  adaptation  to  any  relation, 
456;  its  treatment  by  the  Christian  em- 
perors, ibid.  ;  took  the  same  attitude 
which  the  pagan  religions  had  before 
towards  the  state,  457  ;  several  forms  of 
relation  of  church  to  state  subsequent- 
ly' 457'  458  ;  church  in  the  States  of  the 
Church,  459  ;  Papal  theory  of  the  rela- 
tion, 460,  461 ;  high  claims  of  Innocent 
III.  and  Boniface  VIII.,  tbid.  ;  decides 
over  the  state  and  the  private  con- 
science, but  some  Protestant  churches 
are  equally  independent,  462  ;  church 
dependent  on  the  state,  as  most  Protes- 
tant established  churches,  463-465 ; 
English  Church,  its  attitude  tow.-irds 
state,  and  acts  of  state  towards  dissent- 
ers, 463,  464  ;  the  jus  reform^mdi  in 
Protestant  countries  belonged  to  the 


622 


INDEX. 


state  or  the  prince,  464,  465  ;  church  ' 
and  state  in  several  English  colonies, 
tbtd.;  Kirk  of  Scotland,  its  attitude 
towards  the  state,  466,  467.  Opinion  on 
the  relation  of  religion  to  the  state. 
Plato's,  469,  470 ;  Cicero's,  471  ;  that  j 
of  the  church  under  the  Christian  em- 
perors, 473  onw.  ;  the  Donatists  held 
force  wrong  in  matters  of  religion,  473, 
474 ;  Catholic  church  claimed  inde- 
pendence, 474  ;  Protestants  made  the 
prince  the  head  of  the  state,  ibid.  I 
Hooker's  theory,  475-481  ;  church  pol-  | 
ity  may  be  modified — no  one  form  un-  ' 
alterably  settled  in  Scripture,  475  ;  in  ' 
things  indifferent  the  whole  church  may 
legislate,  476;  yet  the  church  subse- 
quently may  take  away  what  is  hurtful,  ' 
477 ;  of  the  relations  of  church  and 
state,  he  held  that  they  are  in  Christian 
lands  the  same  community,  with  differ- 
ent officers  under  the  same  supreme 
head,  477  ;  the  right  to  this  princedom  ' 
is  by  contract  between  prince  and  peo- 
ple, 477,  478  ;  his  explanation  of  the 
relation  where  the  Christian  church  is 
in  heathen  lands,  478  ;  and  of  the  Cath- 
olic Christendom,  479 ;  objections  to 
Hooker's  view,  480  ;  Warburton's  the- 
ory, 481-488  ;  Hooker  and  the  Puritans  ' 
both  in  error — church  and  state  were 
two  societies,  481  ;  but,  by  alliance, 
one,  482  ;  their  ends  different,  ibid.  ; 
religion  has  no  coercive  power,  483 ; 
terms  of  the  alliance,  483,  484  ;  the  j 
Christian  church  and  the  established 
church  of  England  most  fit  for  this  alli- 
ance, 484  ;  the  state  chose  the  largest, 
most  powerful  church  for  its  ally,  ibid.  ; 
and  may  disestablish  it  if  it  should 
grow  weak,  485  ;  power  given  to  the 
church  by  the  state — test-laws  fortify 
the  church,  485  :  and  are  not  unjust, 
485,  486.  Low  view  of  an  establishment 
held  by  Warburton,  486.  A  church,  not 
established, not  an  imperiiim  in  imperio, 
ibid.  Arnold's  view  of  the  connection 
of  church  and  state,  487-493  (see  Ar- 
nold) ,  Gladstone's  view,  494-497  (see 
Gladstone).  Conclusions,  497-504  ;  a 
state  may  establish  a  religion,  if  it  al- 


lows freedom  of  opinion  and  worship, 
497,  498  ;  difference  of  religious  opin- 
ions grows  out  of  thenature  of  Chris- 
tianity, 499  ;  practical  evils  of  union  of 
church  and  state,  500,  501  ;  establish- 
ments have  failed  of  their  end,  502 ; 
the  voluntary  system  has  been  a  bless- 
ing to  the  United  States,  503.  Attitude 
of  Protestants  towards  Rome,  504  ;  no 
new  principle  involved  in  the  Pope's 
exercise  of  spiritual  power,  504,  505. 
Protection  of  religious  worship  is  like 
any  other  protection,  ibid.  ;  points  in 
which  the  state  may  control  the  church 
in  secular  matters,  506 ;  as  amount  of 
property  held,  ibid-  /  or  exempted  from 
taxation,  etc.,  506-508.  Crimes  against 
religion,  508-513  ;  recognized  in  many 
states,  especially  in  the  Brahminical 
religion,  508,  509 ;  by  English  laws, 
ibid.  ;  laws  against  blasphemy  reason- 
able, 510,  511.  Most,  if  not  all,  other 
crimes  not  punished  as  being  directly 
against  religion,  as  perjury,  511  ;  viola- 
tion of  sepulchres,  511,  512;  sacrilege, 
witchcraft,  religious  imposture,  512  ; 
Sunday  laws,  ibid. 
Representation,  principle  or  rule  of, 
296 ;  unknown  to  the  ancients,  294  ; 
importance  of,  ibid.  ,-  representation  of 
interests,  297 ;  of  minorities,  298,  ii, 
293-295  ;  several  plans  mentioned,  294, 

Representative,  relation  to  his  consti- 
tuents and  duty  of,  295,  296. 

Reputation,  right  of,  iii;  two  rights 
included  in  it,  ibid.  ;  can  collide  with 
right  of  free  speech,  112  ;  trials  for  libel 
and  slander,  113,  114. 

Resistance  of  the  individual  to  law, 
can  it  be  ever  right  ?  402. 

Responsibility  of  relatives,  in  some 
ancient  states,  439. 

Responsibility  of  ministers  for  sover- 
eigns, 581 ;  kings  should  be  subject  to 
complaint  in  civil  matters,  582  ;  in  some 
polities  could  be  dcjiosed  for  misgov- 
ernment,  583  ;  ought  they  to  be  amena- 
ble for  private  crimes  ?  584,  585. 

Retribuiion,  an  end  in  punishment, 
334- 


INDEX. 


623 


Revolutions,  great  differences  in,  405  : 
we  cannot  argue  that  it  is  wrong,  from 
duties  of  individuals  to  obey  law,  403  ; 
importance  of  the  practical  side  of  the 
question  of  right,  404 ;  opinions  on, 
among  the  Greeks  :  Plato's,  406,  407 ; 
Aristotle's,  407;  among  the  Jews,  408  ; 
in  the  Middle  Ages,  ibid.  ;  the  Pope  the 
fomcnter  of  revolution,  Hid.  ;  the  r'ght 
sanctioned  in  some  mediaeval  states, 
409 ;  theories  on  the  revolution  after 
the  Reformation,  409,  410  ;  as  by  Bu- 
chanan, Languet,  Rose,  Mariana,  ibid.  ; 
opinions  in  England,  411  ;  Milton's, 
411-413  ;  South  s  and  others',  after  the 
reaction,  413  ;  Locke's  doctrine  resting 
on  contract,  414  ;  the  Whig  doctrine, 
415  ;  Burke  on  this,  ibid.  ;  French  the- 
ory, 416 ;  doctrine  in  the  United  States, 
416,  417.  Kant  on  resistance  to  public 
authority,  417,  418  ;  Stahl  on  the  limits 
of  obedience,  419  ;  Fichte,  the  elder, 
on  revolution,  419,  420 ;  Schlcierma- 
cher,  420;  R.  Rothe,  421,  422  ;  doctrine 
in  the  New  Testament,  423-425.  Rev- 
olution is  a  right  of  a  people,  426  ;  jus- 
tified by  the  circumstances  in  each 
case,  ibid.  ;  an  extreme  remedy,  427  ; 
to  be  used  if  the  wisdom  of  the  people 
so  decides,  since  they  arc  the  ultimate 
sour.ce  of  power,  428,  429  ;  and  has  been 
in  its  exercise  a  great  benefit  to  man- 
kind, 430.  Revolutions  differ  from  other 
polit.  changes  liy  being  quick  and  seek- 
ing to  reach  their  end  at  once,  ii.  576; 
no  concert  necessary  at  first,  but  only 
a  commop  feeling,  ibid. ;  immediate 
causes  often  trivial,  577 ;  illustration 
from  Sicilian  Vespers,  ibid.  ,•  Aristotle 
on  revolutions,  578-583  ;  on  the  causes 
of  political  changes  in  various  polities, 
578.  579 ;  on  changes  in  democracies 
and  their  causes,  580  ;  on  preventing 
revolutions,  581,  582  ;  as  by  not  having 
public  offices  lucrative,  583  ;  nor  bur- 
dening the  rich,  ibid.;  on  preventing 
politics  from  running  to  extremes,  584  ; 
on  conforming  education  to  the  polity, 
585.  Comprehensiveness  of  the  term 
revolution,  586;  illustrations,  586,  587. 
Treatment  of  revolutions  by  govcrn- 


I  ments,  ibid.  Theoretical  character  of 
I  some  modern  revolutions,  588.  An- 
cient and  modern  revolutions  com- 
pared, ibid.  ;  moral  convictions  of  their 
rightfulness  in  modern  times,  589 ;  re- 
marks of  Guizot  and  Buchez  on  these 
convictions  and  their  causes,  589,  590. 
'What  polities  are  most  exposed  to 
them,  590;  national  character  as  influ- 
encing their  course,  591 ;  course  of 
revolution  in  France,  591-593.  Can 
revolutions  be  prevented,  and  how  ? 
593-595 ;  effect  of  a  trained  militia, 
594  ;  coups  d'etat,  ibid. 
Rewards,  should  good  citizens  receive 
them,  335  ;  Beccaria's  opinion  on,  343. 
Rights  as  powers  of  free  action,  6;  de- 
rivation of  the  word,  ibid.,  n.  ;  are  sub- 
jective, as  being  personal,  ibid. ;  proof 
that  they  exist,  7  ;  from  man's  convic- 
tions in  the  family,  ibid.  ;  and  the  state, 
8 ;  are  recognized  even  by  lower  races 
of  men,  9  ;  state-law  solely  cannot  ac- 
count for  the  conviction,  10 ;  final  cause 
of  their  existence  the  nature  and  des- 
tiny of  man,  13  ;  needed  as  checks  on 
wrong,  12  ;  necessary  for  moral  devel- 
opment, 13.  Relation  to  morals  :  are  in- 
cluded in  morals,  14 ;  may  be  waived 
in  part,  13  ;  are  most  important  on  the 
prohibitory  or  negative  side,  16  ;  obli- 
gation correlative  to  rights,  and  chiefly 
negative,  but  duties  both  positive  and 
negative,  16  ;  are  external,  but  moral 
requirements  both  external  and  inter- 
nal, 17  ;  may  be  sharply  defined,  18  ; 
can  be  enforced,  19  ;  but  use  of  force  no 
necessary  criterion  of  rights,  19,  20. 
Recognition  of  rights,  necessary  for  law 
and  society,  21  ;  imply  coexistence  of 
men,  22  ;  thus  point  to  society  and 
government,  ibid. ;  Kant's  definition 
founded  on  this  coexistence,  23.  Natu- 
ral rights,  in  what  sense  are  there  any  ? 
24-26.  Equality  of  rights,  sense  of  the 
term,  27,  28.  Relation  of  rights  to 
honor,  29,  30 ;  to  Christianity,  30,  31  ; 
to  justice,  32;  to  freedom  and  slavery, 
33  ;  seeming  collisions  of,  34  ;  limita- 
tionsof,35;  divisions  of,  36, 37.  Particu- 
lar rights.  See  Life,  Locomotion,  Prop- 


624 


INDEX. 


erty,  Marriage,  Redress,  etc.  Right 
of  a  married  pair,  98-102  ;  of  parents, 
102-106 ;  power  of  father,  in  Roman 
law  and  in  Greece,  102-104 1  Roman 
and  German  conceptions  of,  compared, 
126.  Right  of  revolution.  See  Revolu- 
tion. Right  to  punish  capitally,  374  ; 
Right  of  emigration,  384  ;  not  absolute, 
ibid. 

Ro.\DS,  right  to  build  carries  out  right  of 
locomotion,  40  ;  may  be  constructed  by 
state,  221  ;  compensation  for  use  of 
private  lands,  ii.  399  ;  can  the  state  or 
chartered  companies  best  build  them, 
especially  ways  of  transport,  399-401. 

RoEDER,  C,  on  rights,  133. 

ROTHE,  R.,  his  explanation  of  the  state's 
power  to  punish,  351,  352  ;  of  the  right 
of  revolution,  421,  422. 

RoTTECK,  L.  von,  on  rights,  131. 

Rome,  as  a  monarchy,  490-492  ;  as  an 
imperial  despotism,  504-509 ;  as  an 
aristocracy,  ii.  12-35 ;  the  senate,  ii. 
16-20;  democratic  institutions,  113-115  ; 
Roman  colonies,  ii.  151,  152  ;  Roman 
provinces  and  their  government,  153- 
158. 

Roman  lawyers,  on  justice,  125,  126. 
Roman  idea  of  the  state  involves  the 
sovereignty  of  the  people,  504. 

Rousseau,  his  theory  of  the  state,  172- 
182  ;  his  state  of  nature,  173  ;  freedom 
inalienable,  172  ;  social  pact,  173;  sov- 
ereignty not  capable  of  representation, 
175 ;  general  will  of  the  people  right, 
178  ;  power  of  the  body  politic  abso- 
lute, 177  ;  his  explanation  of  the  death- 
penalty,  176 ;  no  one  system  of  gov- 
ernment the  best,  178  ;  executive  offi- 
cers mere  agents,  179  ;  effect  of  violat- 
ing the  pact,  180,  181 ;  compared  with 
Hobbes,  182. 

Safety  against  foreign  foes,  ii.  392,  393  ; 

within  the  state  by  means  of  a  police, 

394.    See  Police. 
Sanitary  laws  and  sanitary  police.  See 

Health 

Satisfaction,  sense  of,  as  an  end  in 

punisliing,  333,  compare  355. 
Scabini,  their  origin,  as  substitutes  for  1 


the  people,  in  courts  under  Charle- 
magne, ii.  363  ;  formed  in  some  places 
a  hereditary  class,  364  ;  appear  in  most 
parts  of  middle  Europe,  ibid.;  formed 
also  the  town-councils  there,  ibid. 
Self-defence,  limited  by  right  of  as- 
sailant, 41. 
Self-Redress,  is  there  any  right  of? 
116. 

Senate  of  Rome  at  first,  ii.  16 ;  patres 
conscripti,  ibid.  ;  who  and  by  whom  ap- 
pointed, 16,  17  ;  functions,  18-21  ;  not 
properly  a  legislative  body,  20. 
Slavery,  a  term  for  deprivation  of  all  or 
most  personal  rights,  33  ;  not  regarded 
by  the  ancients  as  making  a  difference 
in  forms  of  government,  483. 
Socialism,  modern,  312-323.  See  Com- 
munism. 

Solon,  his  equity  and  moderation,  ii. 

124, 125  ;  his  political  reforms,  123-125. 
South,  Dr.  Robert,  against  the  right  of 

lawfulness  of  revolution,  413. 
Sovf.reignty  of  a  state  wliat,  202-204. 

See  Austin,  J. 
Spanish  colonies,  ii.  160-163. 
Sparta,  its  land  tenure,  310  ;  constitu- 
tion, 470,  n.  ;  monarchy,  536  ;  ranks, 
536  ;  gerusia  or  senate  of  Sparta,  538  ; 
the  ephori,  539  ;  Aristotle's  criticism  on 
Spartan  institutions,  540-543  ;  changes 
in  wealth,  540  ;  a  demus,  543  ;  ephori  as 
an  example  of  growing  institutions,  ii. 
355,  356. 

Spencer,  Herbert,  his  theory  of  prop- 
erty in  land,  63-66  ;  examined,  66-68  ; 
on  exogamy  and  bride-stealing,  93,  94. 
Spinoza,  on  the  state's  origin  and  na- 
ture, 161-165  ;  how  far  similar  to  that 
of  Hobbes,  165,  n. 
Squittinio  at  Florence,  ii.  79,  80. 
Stahl,  his  explanation  of  punishment  in 
the  state,  349,  350  ;  on  limits  of  obedi- 
ence to  law  and  rij^ht  of  revolution, 
419  ;  on  rights,  135. 
State,  the,  need  of  to  define  and  protect 
rights,  117-119;  original  sense  of  the 
word  state,  140 ;   not  strictly  synony- 
mous with  nation,  141,  142  ;   its  com- 
prehensiveness, 143;  state  and  terri- 
I     tory,  144  ;  Greek  theory  of  state's  right 


INDEX. 


625 


to  exist  little  developed,  145 ;  Roman,  ' 
147 ;  under  the  Christianized  empire, 
148;  Catholic  theory  of  the  state,  149;  ^ 
revived  by  Bonald  and  Le  Maistre,  149, 
150  ;   Machiavelli's  idea  of  the  state, 
150-152  ;  theory  of  Grotius,  152-154  ; 
of  Hooker,  155-157  ;  of  Hobbes,  157-  j 
161  ;   of  Spinoza,  161-165  ;  of  Filmcr, 
166  ;  of  Locke,  i58  ;  of  Montesquieu, 
169-172  ;  of  Rousseau's  contrat  social, 
172-182 ;  Burke's  view  of  the  state,  182- 
185  ;  little  of  a  theorist,  184.  Influence 
of  French  revolution  on  theories  of  the  j 
state,  185-188.    Criticism  of  the  princi-  | 
pal  theories  on  the  origin,  189-198.  Sov-  I 
ereignty  and  territory,  200-205.  Peo- 
ple, political  meaning  of  the  word,  205- 
207.  .Sphere  and  ends  of  state,  208-243. 
Limits  of  state-power  according  to  ' 
VV.  Humboldt  and  J.  S.  Mill,  243-261  ; 
remarks  on  these  opinions,  261,  264  ; 
limits  of  exercise  of  individual  rights, 
264.    Liberties  and  securities  of  indi- 
viduals in  the  state,  266 ;  seeming  ex-  j 
ceptions  to,  268,  269.    Rights  in  the 
state  or  political  rights  :  right  of  peti- 
tion, 270  ;  freedom  of  speech  and  the 
press,  272  ;   equal  taxation,  275  ;  lib-  . 
erty  of  association,  277.    Relations  of 
the  state  to  morals,  education,  religion. 
See  Moral  Legislation,  Public  Charity,  I 
Education,  Religion.    Organization  of 
states,  282-302.    A  constitution  what  ? 
283-285;  Judge  Coolcy  and  Hurlbut 
on,  285,  n.    Does  the  consent  of  the 
people  alone  give  validity  to  a  consti- 
tution ?  286-288.    No  form  of  polity  in- 
dicated by  theory,  288-290.  Depart- 
ments of  government.  .See  Department,  j 
Representative  system,  293,  294  ;  rela- 
tions arid  duty  of  a  representative,  295, 
296.   Rights  of  suffrage  and  of  holding 
office,  do  they  belong  in  any  sense  to 
all  citizens  ?  299-302.  State's  punishing 
power,  324-381.     How  ought  the  state 
to  deal  with  bad  institutions,  396-402.  | 
Relations  of  stales  to  physical  causes,  j 
li.  514-519.    Monlcsquic\i  on  (lie  spirit 
of  government,  on  honor  as  cultivated 
by  them,  519-526.    Influence  of  differ- 
ent polities  on   individual   character,  . 

VOL.  n.— 40. 


526-537.  Relations  of  different  polities 
to  art  and  learning,  538-541.  Political 
changes,  causes  of,  568-575 ,  revolu- 
tions in  states,  576-595.  Decline  and 
fall  of  states,  595-606. 

Stein,  L.  von,  on  communism  and  so- 
cialism, 312-317,  and  part  ii.  ch.  7, 
passim. 

Stoics  on  justice,  124. 

Strabo  on  ancient  communities,  53  ;  on 
the  Lycian  confederation,  ii.  193. 

Stubbs,  Prof.  W.,  often  cited,  as  on  the 
early  land-tenure  of  the  Germans,  55  ; 
on  the  English  township,  ii.  383  ;  on  the 
English  constitution,  i.  549,  550,  551, 
554,  561.  563. 

SuFFRAGii,  is  there  a  natural  right  of? 
299-302;  restrictions  on,  ii.  111,  112; 
especially  in  ancient  states,  112,  113. 

Sweden,  her  four  estates  lately  reduced 
to  two,  ii.  303. 

Swiss  Confederations.  Rise  and  growth 
of  the  league,  ii.  208-210;  constitutions 
in  the  French  revolution,  210-212;  new 
constitution  of  1815,  213  ;  revisions  of 
cantonal  constitutions,  214;  constitu- 
tion of  1848,  214-220  ;  projects  to  revise 
this,  220,  221 ;  constitution  of  1874, 
222  ;  remarks  on  Swiss  constitutions, 
223. 

Tacitus  on  mixed  governments,  472. 

T.^Lio  among  the  Hebrews,  369 ;  per- 
haps only  a  measure  of  amount  of 
penalty,  372;  among  the  Hindoos  and 
other  races,  369  ;  approved  by  Greek 
poets  and  Plato,  370 ;  by  some  modern 
philosophers,  346,  351  ;  defended  by 
Philo  the  Jew,  371,  n.  ;  by  Cicero, 
ibid.  ;  a^  very  imperfect  equivalent  or 
measure  for  crime,  371. 

Taxation  a  right  of  the  state,  240. 

Tknuke  of  land  in  early  times,  437. 

Testamentakv  disposition,  a  right  re- 
stricted by  family  relations,  105-109  ; 
general  sentiment  and  usage  favors  de- 
scent of  property  in  the  family,  106 ; 
originally  no  law  of  descent,  107,  n. , 
much  property  not  transmissible  by  will 
in  feudal  ami  other  countries,  107  ;  rea- 
sons why  wills  should  not  be  permitted, 


626 


INDEX. 


107, 108  ;  wills  setting  aside  next  of  kin, 
Roman  qucreLz  iiiofficioii  testntncnti, 
108  ;  also  donationis,  109,  n.  ;  disinheri- 
son, should  it  be  free  to  the  holder  of 
property  ?  109  ;  bequest  to  religious  and 
other  objects  limited  by  state  law,  no. 

Theockacy,  497-500;  idea  of,  497,  498  ; 
Jewish,  498,  499  ;  admits  of  various  forms 
of  government,  500. 

Theory,  political,  sway  of,  over  an  age 
or  nation,  290. 

Theories  of  the  state  examined.  That 
it  is  founded  on  contract,  190-195  ; 
looks  at  part  of  man's  nature  only,  190 ; 
is  unreal,  191  ;  fails  to  explain  state 
rights,  192-195.  The  divine  origin  of 
the  state,  196,  197;  justifies  no  particu- 
lar state  or  form,  ibid.  State  rights 
not  rights  surrendered  by  individuals, 
192  ;  states  have  rights  not  derived 
from  individuals,  195. 

Thom.asius,  Prof,  at  Halle,  author  of  the 
distinction  between  the  moral  and  jural 
departments  of  right,  19,  127. 

ToCQUEViLi.E,  Alexis  de,  on  centralism 
in  administration  and  government,  ii. 
368-371 ;  on  honor  in  democracies,  523, 
524  ;  his  opinion  examined,  ibid. 

Transmission  of  property  in  early  times, 
438. 

TRENDEi.ENBURn  on  rights,  136;  on  a 
,  particular  case  of  rights,  31. 

Trials  at  Athens,  ii.  132,  133. 

Trib.vl  system  in  early  times,  455-461. 

Tribunes  at  Rome,  ii.  23;  continued  the 
political  dualism,  24  ;  their  efficiency, 
25  ;  a  good  example  of  the  develop- 
ment of  institutions,  356. 

TuNGUSES,  government  among,  442. 

Tylor,  Edwin,  on  progression  and  de- 
gradation in  culture,  435. 

Tyranny  in  city-states,  510;  first  era  of 
Greek  tyranny,  511,  512  ;  second  era, 
513;  Aristotle  on,  513-515;  Italian, 
especially  at  Milan,  515-518. 

United  States   of  America,   ii.  236- 


258.  Their  polity  determined  by  their 
colonial  history,  236;  led  to  union,  as 
English  colonies,  236,  237.  Differences 
among  them,  238  ;  early  attempts  at 
union  of  some  colonies,  as  in  1643,  238  ; 
in  1754,  240;  the  old  confederation, 
241  ;  its  defects,  245  ;  new  constitution 
and  reasons  for  it,  248  ;  formation,  248, 
249  ;  it  creates  a  state,  not  a  mere  con- 
federacy, 249-251 ;  but  the  states  still 
exist,  251,  252  ;  the  Supreme  Court  its 
only  interpreter  in  the  last  resort,  252, 
253 ;  claims  of  two  presidents  to 
the  interpreting  power,  253;  examined, 
ibid. ;  Mr.  Calhoun  on  the  court,  254. 
Executive  chief  of  the  United  States, 
his  vast  powers,  254,  255;  dangers  of 
consolidation  and  of  disintegration  ex- 
amined, 255-257. 

Venice,  constitution  of,  ii.  43-58.  Comp. 
Aristocracy  ;  early  Venice,  44-47  ; 
doge,  48-50  ;  great  council,  50-55  ; 
' '  closing  "  of  the  council,  52-55  ;  doge's 
council  and  the  pregadi.  55  ;  the  qua- 
rantia,  56  ;  the  ten,  56-58  ;  the  three, 

ViLl,.\GE  communities  and  house  com- 
munities, 59,  60. 

Von  Hali.ek  denies  state  rights  proper- 
ly so  called,  186. 

Voting,  ought  a  qualified  citizen  to  be 
obliged  to  vote  ?  388. 

Waitz,  Prof.  Geo.,  his  history  of  the 
German  constitution  often  cited,  as 
527.  561. 

W.vrburton,  'W.,  Bishop,  on  church 
.and  state,  ii.  481-487.  See  Religion  and 
the  State. 

Whewell  on  rights,  132;  on  their  ends, 
II. 

■Whigs,  their  doctrine  of  revolution,  415. 
Worship,  right  of,  115,116,  279,  2C0 ; 
limitations  on,  115. 

Zachari-K,  K.  S.,  on  rights,  132. 


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